Alimony is an order of the Court requiring one spouse to pay a specified amount of money to the other spouse (or former spouse) for maintenance and support. Usually, a request for alimony is made in conjunction with an action for divorce. Post-separation support can be loosely defined as “temporary alimony”. This is a court order entered based upon less stringent evidence than alimony and is designed to address the needs of a dependent spouse for a specific time or until there is a final order awarding or denying alimony.
Requirements to Qualify for an Award of Alimony
Whether a spouse is entitled to alimony requires a three-part test:
1. The financial dependence of one spouse (Dependent Spouse)
2. Supporting status of the other spouse (Supporting Spouse)
3. The determination that an award of alimony would be fair based on all relevant factors
A dependent spouse can be either the husband or wife who is in need of maintenance and support from the other spouse, or who is actually substantially financially dependent upon the other spouse. The supporting spouse is the husband or wife upon whom the other spouse is substantially dependent.
The trial judge first determines whether there is, in fact, both a dependent and supporting spouse. If so, the judge decides whether the dependent spouse has engaged in “illicit sexual behavior” during the marriage and prior to separation. If so, the dependent spouse is not eligible for alimony unless the supporting spouse also engaged in “illicit sexual behavior,” in which the award of alimony is discretionary. If only the supporting spouse engaged in “illicit sexual behavior” the judge must award some amount of alimony. Once the judge has determined that an award of alimony is appropriate, he or she must then determine the amount and duration. Unlike child support, there are no specific guidelines or worksheets used to calculate the amount of alimony to be paid. Rather, the amount falls within the discretion of the trial judge.
Relevant factors include:
1. The marital misconduct of either spouse (other than illicit sexual behavior that bars or requires alimony;
2. Relative earnings and earning capacities of the spouses;
3. Ages and physical, mental, and emotional conditions of the spouses;
4. The income of each spouse;
5. Duration of the marriage;
6. Contribution by one spouse to the education or training of the other spouse;
7. Whether the earning power of a spouse is affected by serving as custodian of a minor child;
8. Standard of living established during the marriage;
9. The relative education of spouses and the time necessary to acquire training to find employment to meet his/her financial needs;
10. Relative assets and liabilities of each spouse;
11. Property brought to the marriage by either spouse;
12. The contribution of a spouse as homemaker;
13. The relative needs of the spouses;
14. The federal, state, and local tax ramifications of the alimony award;
15. Any other relevant factor regarding economic circumstances of either spouse
Unlike post-separation support, alimony requires a trial before a judge. However, either party may request a jury trial to determine whether either or both spouses have established marital misconduct.
Alimony or Post-Separation Support Modification or Termination
An order for alimony or post-separation support may be modified at any time upon motion by either party. The spouse seeking the modification must prove changed circumstances. The change in circumstances must relate to a factor originally considered by the judge in making the initial award of alimony.
Post-separation support and alimony terminate if the dependent spouse marries, or engages in cohabitation, or upon the death or either the dependent or supporting spouse.
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Contact the Charlotte family law attorney at the Law Office of Kelli Y. Allen, PLLC if you're preparing for divorce, have questions about your alimony order, or require a post-divorce modification. Our compassionate and experienced lawyer can evaluate your legal options and guide you through each step of your unique legal journey.
You can schedule a consultation with the Charlotte family lawyer at Law Office of Kelli Y. Allen, PLLC by calling (704) 870-0340.
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