Alimony (Spousal Support or Maintenance) Flashcards
Alimony - General Principles
- alimony is paid to an economically dependent spouse
- may be awarded while the parties are still married, during the divorce proceeding, or as part of divorce decree
- some states consider marital fault in awarding alimony, but others don’t
- another area where trial court has great discretion
Types of Alimony
Four types:
- permanent periodic spousal support
- lump sum
- rehabilitative spousal support
- reimbursement spousal support
- courts can award more than one in a single award
Modern Trend Re Alimony
- generally towards awarding less money than in the past b/c most families have two income earners or two people who are able to earn income even if one might not be working at the time
Permanent Periodic Spousal Support
- paid regularly (ex: monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining
- duration: indefinite
- modification: can be increased, decreased or terminated upon proof of substantial change in circumstances
Lump Sum
- a fixed amount payable either all at once or via a series of payments
- often the present value of permanent periodic support
- duration: for specified time period, can be payable in installments or in a lump sum
- modification: NONE -> treated like a contract right + is binding on payor’s estate
Rehabilitative Spousal Support
- consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
- can be ordered along w/ permanent periodic or lump sum alimony
- duration: for specified time period, unless modified by court
- modification: can be increased, decreased or terminated upon proof of substantial change of circs
Reimbursement Spousal Support
- occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree
- in many states, it can be ordered along w/ permanent periodic or lump sum alimony
- duration: for specified period of time; can be payable in installments or in a lump sum
- modification: NONE -> treated as a contractual right + can be awarded even if supporting spouse is not otherwise eligible for spousal support
- fixed sum award based on amount of supporting spouse’s contribution, NOT the value of the professional license or degree
Which kinds of alimony are modifiable?
- permanent periodic + rehabilitative spousal support awards are prospectively modifiable upon a substantial change of circumstances, including death or remarriage
- lump sum payments + reimbursement spousal support are non-modifiable
Exam Tip for Determining Type of Support
- need to look at language
- lump sum support is specified as a total amount
-> ex: $30,000 or $30,000 payable in $500 monthly installments - periodic or rehabilitative support is set out in periodic payments w/ no grand total
-> ex: $500 per month or $500 per month for 60 months
Termination of Spousal Support
- permanent support terminates on death of either spouse or remarriage of recipient spouse
- rehabilitative support terminates on death of either spouse or remarriage of either spouse
- lump sum + reimbursement both survive the death of either spouse
- most jurs also terminate periodic spousal support if recipient spouse begins cohabitating w/ someone in a marriage-like relationship
Factors to Be Considered When Awarding Alimony
MEMORIZE THESE
- standard of living established during the marriage
- duration of the marriage
- age + physical + emotional condition of the parties
- financial resources of the parties
- contribution of each party to the marriage
- time needed for the party seeking support to obtain the training necessary to find appropriate employment
- ability of the payor spouse to meet their needs while paying spousal support
- marital fault (considered in most states for alimony, but generally not for property division
*another area in which court has great discretion
Two Key Broad Considerations for Alimony
- needs of the claimant
- ability of the other spouse to pay
Spousal Support - Lifestyle Considerations
- courts can consider lifestyle when deciding the amount of support
- BUT purpose is really to ensure dependent spouse has an adequate income stream to meet their needs
-> NOT necessarily ensuring they maintain the same lifestyle they had during the marriage
Modification of Spousal Support
- only periodic spousal support (i.e. permanent or rehabilitative) may be modified
- may modify if there’s a “substantial change in circumstances” re needs of recipient spouse or ability of payor spouse to pay
- legal obs to a new spouse or children (but not stepchildren) may be a sufficient change in circumstances if the change is unanticipated
-> NOT considered unanticipated + not sufficient change in circumstances if spouse intended to remarry on divorce
Self-Induced Reduction in Income by Payor Spouse
- NOT sufficient to have spousal support reduced
- be alert to this if fact pattern involves a payor spouse who quits their job
