ALIMONY AND SPOUSAL SUPPORT WHEN FILING YOUR OWN DIVORCE
To get temporary alimony (alimony pendente lite) there must be a physical separation. This is financial support that is paid up until the time of the divorce being finalized. Most uncontested divorces do not require this, because the length of time before the divorce is finalized is much shorter since there are no disputes to settle. Either spouse can ask the court to award alimony. Alimony pendente lite can be granted by the court while the divorce is in progress. When the divorce becomes final, there may or may not be an order for alimony and the payment can be higher or lower than the temporary award.
Negotiating with a partner about alimony may provide more flexibly than letting the court decide the terms and conditions of an award. When one of the parties in a divorce or separation wants alimony but the other party does not agree, the judge decides if an alimony award should be made and if so, for how much. Unlike child support calculations, judges have discretion in making the award. Negotiated alimony agreements between partners must be approved by the court, just like all other terms in the divorce.
Alimony Tax Consequences
Alimony carries tax implications for both the payor and the recipient. Before seeking alimony, a party should meet with a tax professional to discuss the tax implications of alimony. Alimony is taxable income to the recipient, but the paying spouse does not withhold taxes, so the recipient faces a tax bill. The paying party can deduct payments on a federal tax return; however, there may be complicated hurdles to claim the deduction. IRS publication 504 provides information about the tax implications of alimony. The deductibility of alimony on state taxes is determined by state law, which varies.
Alimony Wage Garnishment
The recipient can arrange for alimony payments to be automatically deducted from a former spouse’s paycheck. When permitted in the jurisdiction, the court issues an order garnishing a former spouse’s paycheck and deducting alimony payments. The employer forwards that money to the court, which makes payment to the recipient. Automatic payments eliminate the uncertainty of whether or when the former spouse will make payments. Keep in mind that not all state require this and many uncontested divorces do not include wage garnishment.
The purpose of alimony is both necessary and reasonable support to a spouse who requires it. When a party wants alimony, he or she can ask for alimony as part of a divorce proceeding. If the spouses reach an agreement about alimony, they can ask the judge to make the agreement a part of the court order. If they cannot reach an agreement, the judge decides whether a spouse is entitled to alimony and how much.
A party who does not ask for alimony during the divorce may not ask later after the divorce case is over.
Spouses can agree to include the duration of alimony arrangement in the court order, but if they agree, the judge will always have the final say as to what is appropriate. Judges may ask questions, but also realize that spouse know their financial situation better than anyone. Also, courts seldom award indefinite alimony or permanent alimony, which lasts until either spouse dies or until the court determines that alimony is no longer appropriate. Rehabilitative alimony lasts for a limited time, as determined by the couple or judge, for example, to allow the receiving spouse to obtain work experience or training necessary to compete in the workforce.
Remarriage can terminate alimony, but it does not automatically end with remarriage.
Parties who agree to any alimony arrangement should have it be part of the divorce so it is a court order. If there is not a written agreement or a court order, the obligated spouse can stop paying alimony to the receiving spouse at any time. As long as alimony is court ordered, if a former spouse falls behind in alimony payments, the recipient can file a motion for contempt and ask the court to take steps to enforce the order.
There are several factors a judge will look at when determining and awarding alimony including whether or not a party can support himself or herself; how much time a party will need to find employment or whether or not a party needs training to obtain employment; the standard of living the party was accustom to during the marriage; how long the couple’s marriage lasted; circumstances surrounding the breakup of the marriage; the age and mental condition of each party; whether the other spouse can pay alimony and still support himself or herself; and the financial needs of each party including all sources of income. As a couple filing your own uncontested divorce, you should look at the same factors regarding spousal support and alimony and apply them to your situation.