The Simple Guide to Spousal Support (Alimony)

Learn about the basics of alimony and spousal support, how the new Tax Cuts and Jobs Act will affect payments, and understand key terms in our alimony glossary.

Masterson Law

Summer Masterson-Goethals

What is Alimony?

Alimony, also referred to as spousal support, refers to payments made to support a former spouse and maintain their standard of living after a divorce. The payments, which may be paid monthly or in one lump sum, are for the “dependent spouse.” The former spouse who pays the alimony is called the “supporting spouse.” Depending on your individual situation, alimony payments may be permanent or temporary.

  • Permanent alimony is paid to the dependent spouse until they die or remarry.
  • Temporary alimony is paid only for a short, predetermined length of time such as during the divorce proceedings.

You may be ordered to pay spousal support if your spouse was dependent on you during the marriage. Without alimony, the dependent spouse might have a hard time living financially.  Support is often ordered when the husband or wife made less money than the other partner or took care of the household and children instead of working.

Alimony is not always warranted in every divorce. It is only ordered for certain reasons. The determination of whether a dependent spouse receives spousal support depends on a variety of factors which are considered by the courts. The amount of spousal support also depends on these considerations. These factors can include both spouses’ income, jobs, and the reasons for the divorce. For example, in a fault divorce, if the dependent spouse has committed any acts of illicit sexual behavior, the supporting spouse isn’t required to pay spousal support. However, if the supporting spouse has also committed an illicit sexual behavior act, the court will award alimony to the dependent spouse.

If you have questions about divorce or spousal support payments, contact an experienced family law attorney for assistance.

Why is Alimony Used?

The sole purpose of alimony is to assist one spouse financially during and after the divorce and maintain their standard of living. A divorce can be financially unfair to a lower-wage-earning or non-wage-earning spouse. So, spousal support seeks to create fairness for the dependent spouse after the marriage ends.

Alimony is often used in cases where one spouse is a full-time parent or homemaker. In these situations, the thinking is that the dependent spouse may need some time to get back on their feet. Spousal support payments may be ordered for the time it takes them to job search or take a course to get their skillset up to job market expectations.

How is the Amount of Alimony Determined?

During divorce proceedings, the courts look at many factors to determine if you or your spouse will receive alimony. Many of the things they consider relate to your ability to work and provide for yourself, such as your age, health, and education level. Here is more information on each factor and how it affects spousal support.

  1. Supporting spouse’s ability to pay: A spouse’s ability to pay is the biggest factor when determining spousal support. They must have enough income to support two households. Ability to pay is based on net income.
  2. Children: The court decides what is in the best interest of the child during a divorce. If the custodial parent (the parent with primary custody) is not employed, the court may consider ordering alimony to help support the spouse as he or she cares for the children.
  3. Marriage: The duration of alimony payments typically depends on the length of the marriage. The longer the marriage, the better your chances of getting spousal support.
  4. The ability to earn: Divorce courts tend to look at both spouses’ current earning capacity and future earnings potential. If one spouse expects to earn more money in the future, it can change the amount and duration of the alimony.
  5. Standard of living the spouses maintained during the marriage: In addition to looking at earning capacity, courts also consider standard of living. How the couple lived before the divorce is examined; they must maintain this standard of living after the divorce as well.
  6. Ability to support themselves: Each spouse’s ability to work outside the home and marketable skills are considered in this factor. Temporary alimony is often granted when the person could work but didn’t during the marriage.
  7. Educational or emotional support: If a spouse supported their spouse through school or any other difficulties, that is considered when awarding alimony. In this case, the alimony is considered compensation for previous support during the marriage.

A general rule for alimony is that the higher a supporting spouse’s earning capacity, the more likely they may pay spousal support. The higher a dependant spouse’s earning capacity, the less likely they may receive alimony.

Alimony is available in all 50 states. However, the laws and requirements of obtaining alimony vary. For instance, many states do not allow permanent alimony. Instead, divorce court judges are only allowed to order temporary alimony. Community property states do not allow any temporary or permanent alimony, because they consider all debts and assets to be equally owned by the spouses. To find out more about spousal support laws in your state and how they may apply to your circumstances, reach out to a local divorce attorney.

Is Alimony Enforcement Like Child Support Enforcement?

Alimony is not enforced like child support payments are enforced. To enforce child support payments, the court has the power to force payments by garnish wages and place liens on property or even send the parent to jail.

With alimony, the court cannot do those things. If the supporting spouse is not paying, the dependent spouse has to return to divorce court and motion for a contempt proceeding to force the supporting spouse to pay. Contempt proceedings involve asking a judge to order the supporting spouse to make all past due and future payments.

If the supporting spouse still won’t pay alimony, in some cases the court can do more, such as impose fines. Other alimony enforcement options include getting a writ of execution from the court in order to confiscate a portion of the supporting spouse’s personal assets like bank accounts and CDs. The court may confiscate personal proceeds like real estate profits to pay off the alimony arrearage. The dependent spouse can seek an income withholding order to take the money from their former spouse’s pay.

If the supporting spouse is not paying spousal support, it is important to find out why. Nonpayment may be due to unemployment or a change in their circumstances, which could in turn affect the amount and duration of alimony provided. If you are having difficulty getting your spousal support payments, contact a family attorney for help figuring out how to get what you deserve.  

How Long Must Alimony Be Paid?

Spousal support is usually rehabilitative. This means it is ordered for as long as it takes for the dependent spouse to receive the education or job training to be self-supportive. Reimbursement or temporary alimony pays for the supporting spouse’s expenses. It only lasts for a specific period of time. The length of alimony payments may be partially determined by how long you were married. Typically, as the length of the marriage increases, so does the length of time you will receive or pay alimony. Terms regarding spousal support are usually written into the divorce decree, but if that document does not state an alimony termination date, then it is up to the court when payments stop.

If you and your spouse signed a prenuptial agreement or “prenup” prior to getting married, it likely contains language about divorce and spousal support payments. In cases where a prenuptial agreement exists, a judge determines if or how long the supporting spouse will pay alimony according to what it says in the agreement.

In most situations, alimony ends when the supporting spouse remarries. If the supporting spouse dies, spousal support is not always terminated. Sometimes the payments continue because the dependent spouse cannot gain employment, or health conditions prohibit them from working. In this case, alimony payments may be made from the supporting spouse’s estate or life insurance.

How Does the New Tax Law Affect Alimony?

Prior to the enactment of the Tax Cuts and Jobs Act (TCJA), payments that met the tax law alimony definition could be deducted from federal income tax. The dependent spouse had to report the alimony as taxable income and pay taxes on it. However, beginning in 2019, dependent spouses will not have to pay taxes on spousal support payments.

Similarly, before the TJCA, supporting spouses could get a tax deduction for the alimony they pay. There is a list of specific requirements that must be met, for example the alimony must be made under an official document like a divorce decree and it must go to the spouse or on their behalf. Once these requirements are met, the alimony payment could be deducted without itemization.

However, beginning in 2019, supporting spouses will not be able to deduct alimony payments. This is important to be aware of, especially for high-income individuals, since the tax savings from deducting alimony payments can be significant.

For the purposes of your taxes, be aware of the timing of your divorce agreement or any modifications to it. Agreements signed, sealed and delivered by December 31, 2018 will abide under former tax laws, whereas any agreements reached January 1, 2019 and later are subject to the new tax law (the TCJA).

If you are a supporting spouse, the TCJA gives you a huge incentive to finalize a divorce before December 31, 2018. On the other hand, if you are a dependent spouse, you would likely benefit  from waiting until 2019 to obtain a divorce since you would not have to pay taxes on alimony. No matter which side you are on, you can benefit from talking to your tax professional and an experienced divorce attorney to find out what laws apply to your situation.

Alimony Glossary

Alimony

Also referred to as spousal support. This refers to payments made to support a former spouse and maintain their standard of living after a divorce.

Alimony vs child support

Alimony is different than child support. Alimony is paid to support an ex-wife or ex-husband, whereas child support is specifically used for your child’s needs.

Spousal support

Another term for alimony. This refers to payments made to support a former spouse and maintain their standard of living after a divorce

How much is alimony?

The amount of alimony depends on your specific situation. When deciding on the amount of alimony, the court will consider factors like length of the marriage, both spouses’ income, and standard of living before divorce.

How is alimony calculated?

If you signed a prenuptial agreement, it likely states how alimony will be calculated in your case. If not, the court will consider factors like length of the marriage, both spouses’ income, and standard of living before divorce.

Uniform Marriage and Divorce Act

The UMDA is an extensive law governing marriage, divorce, property distribution, alimony, child support, and custody. Among other things, it eliminates fault divorce and provides for equitable distribution of property. It has been adopted by the following states: Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana and Washington.

Spouse

A spouse is your husband or wife. During alimony proceedings you may hear the terms dependent spouse (the one who receives alimony payments) and supporting spouse (the one who pays).

Ex-wife, Ex-husband

After your divorce, you typically refer to your former spouse as your ex-wife or ex-husband.

Spousal income

The Social Security Administration has a formula that determines how much of a spouse’s income may be available. You can find more information on it here.

Grounds for alimony

Whether or not alimony will be awarded depends on your specific situation. However, spousal support is most often granted when one spouse is financially dependent on the other. This may be because they were a homemaker or raising children or because of their physical and mental ability to work.

CONTACT SUMMER

Summer Masterson-Goethals
Consumer and family lawyer, former legal aid attorney and Missouri Bar Leadership Academy member, Springfield Business Journal 40 under 40 Honoree.

Masterson Law
1771 S. Fremont
Springfield, MO 65804
(417) 522-1280

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