ALIMONY (SPOUSAL SUPPORT OR MAINTENANCE)

Question 1

GENERAL PRINCIPLES

Answer 1

• Alimony (also known as spousal support/ maintenance) is paid to an economically dependent spouse.
• It may be awarded while parties are still married, during divorce proceeding, or as part of divorce decree.
• Some states consider marital fault in awarding spousal support, but other states do not.
• Trial ct has great discretion in awarding alimony.

Question 2

TYPES OF ALIMONY

Answer 2

• 4 types of alimony, & cts can award more than one type in a single award

Question 3

Permanent Periodic Spousal Support

Answer 3

• Permanent periodic spousal support is paid regularly (ex. monthly) to support a spouse who has neither the resources nor ability to be self-sustaining.
• Ex: Periodic alimony of $2,000 per month to one former spouse until death/ remarriage.
• Duration: Indefinite.
• Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.

Question 4

Lump Sum

Answer 4

• A lump sum payment is a fixed amount payable either all at once/via a series of payments.
• This is often the present value of permanent periodic support.
• Ex: The sum of $36,000 paid at a rate of $1,000 per month for 36 months.
• Duration: For specified time period; can be payable in installments/lump sum.
• Modification: None. This is treated like a K right & is binding on payor’s estate

Question 5

Rehabilitative Spousal Support

Answer 5

• Rehabilitative spousal support: periodic payments for a limited time to allow a spouse to gain skills to become self-supporting.
• It can be ordered along w/ permanent periodic/lump sum alimony.
• Ex: Rehabilitative alimony to one former spouse
  of $1,000 per month for 36 months to gain education/ skills.
• Duration: For specified time period, unless modified by ct.
• Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.

Question 6

Reimbursement Spousal Support

Answer 6

• Reimbursement spousal support is occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license/degree.
• It can be ordered along w/ permanent periodic/lump sum alimony.
• Ex: Sum of $20,000 as repayment for supporting spouse’s contribution to increased education provided to other spouse.
• Duration: For specified period of time; can be payable in installments/lump sum.
• Modification: None. It is treated as a K right & can be awarded even if supporting spouse is not otherwise eligible for spousal support.
• Note: This is a fixed sum award based on the amount of supporting spouse’s contribution, not value of professional license/degree.

Question 7

Tip

Answer 7

• Permanent periodic & rehabilitative spousal support awards are prospectively modifiable upon substantial change of circumstances, including death/remarriage.
• Lump sum payments & reimbursement spousal support are nonmodifiable.

Question 8

Tip

Answer 8

• On exam, to determine type of support, look carefully at language used in facts.
• Lump sum support is specified as a total amount (ex.“$30,000” or “$30,000, payable in $500 monthly installments”).
• Periodic/rehabilitative support is set out in periodic payments w/ no grand total (ex. “$500 per month” or even “$500 per month for 60 months”).

Question 9

FACTORS TO BE CONSIDERED WHEN
AWARDING ALIMONY

Answer 9

• Ct has great discretion in awarding as much spousal
  support as necessary for maintenance of the requesting spouse.
• Factors considered include:
• Standard of living established during marriage
• Duration of marriage
• Age & physical & emotional condition of parties
• Financial resources of parties
• Contribution of each party to marriage
• Time needed for party seeking support to obtain training necessary to find appropriate employment
• Ability of payor spouse to meet their needs
  while paying spousal support
• Marital fault (considered in most states for alimony but generally not considered for property division)
• More broadly, the 2 primary considerations are needs of claimant & ability of other spouse to pay.

Question 10

MODIFICATION OF SPOUSAL SUPPORT

Answer 10

• Only periodic spousal support (permanent/ rehabilitative alimony) may be modified.
• Periodic spousal support may be modified if there is a substantial change in circumstances regarding needs of recipient spouse/ability of payor spouse to pay.
• Legal obligations to a new spouse/children (but not stepchildren) may be a sufficient change in circumstances if change is unanticipated.
• If a spouse intended to remarry upon divorce, change is not unanticipated & will not constitute a sufficient change in circumstances.

Question 11

Tip

Answer 11

Note that a self-induced reduction in income by payor spouse is not sufficient to have spousal
support reduced. Be alert to this issue if a fact
pattern involves a payor spouse who quits their job.

Question 12

TERMINATION OF SPOUSAL SUPPORT

Answer 12

• Periodic spousal support terminates upon remarriage of recipient spouse/death of either spouse.
• Most jurisdictions would also terminate spousal support if recipient spouse begins cohabiting w/ someone in a marriage-like relationship.
• Lump sum & reimbursement support is not modifiable & survives death of either spouse

Question 13

TAX CONSEQUENCES OF SPOUSAL
SUPPORT

Answer 13

• Under current law, spousal support is not a taxable event.
• For divorce/separation instruments executed before 2019, spousal support payments are deductible by payor & are income to recipient unless instrument is modified to follow current rule.