FAQ: In a Divorce How Is Alimony Determined?

Whenever a couple begins a divorce proceeding, it is customary for alimony to be considered by one of the parties. Alimony is also known as spousal support and can have a profound financial impact both on the spouse who gives it and on the one who receives it.

These days, alimony is gender-neutral, meaning that the recipient may be the husband or the wife.  It is also a matter that can reach the news when celebrities and other well known people receive or are ordered to make alimony payments, such as a recent order against former New York Attorney General and Trump associate Rudy Giuliani (left) who was told he faced jail unless he made a substantial alimony payment to his former wife.

Alimony payments may be temporary or permanent, depending on qualifying conditions and prevalent alimony laws.

Laws governing alimony payments vary according to the various state laws, although there are broad similarities that apply regarding how alimony is dealt with in those jurisdictions.

Mostly the states will look at the different types of alimony and at the purpose and duration of the alimony. State laws will of course differ, although there will also be a significant overlap in terms of the way in which alimony will be provided. For instance, specific alimony such as rehabilitative alimony designed to permit payments to be made for education or occupational training etc is one area that will be common to most states.

The state law, such as that governed by California law that we deal with as an Orange County divorce lawyer require specialist knowledge so you ca understand whether you qualify to receive alimony to maintain the financial status you enjoyed while married.

When Is Alimony Granted?

For alimony to be granted, a judge must take into account the receiving spouse’s ability to support themselves and be financially independent.

The judge may also decide if alimony payments will be temporary or permanent, the payment will be given in a lump sum, and the alimony will grant the recipient ownership of shared property. Ultimately, it all depends on the circumstances of the divorce and the financial situation of each of the spouses.

General Alimony Rules

Alimony rules vary from state to state, but one of the main rules is that whoever will be receiving the alimony must prove that they have a financial need.

The spouse requesting alimony may also be required to:

• Make some changes in the way they live
• Prove that they have attempted to get higher-paying work
• Undergo a vocational evaluation to determine their future earning potential
• Prove how long the marriage has lasted, since short-term marriages (of a year or so) are unlikely to payout alimony

Alimony Calculations

There is no standard answer to the question of how much alimony a spouse is entitled to receive. In some cases, the couples can come to an agreement as to how much alimony one of them will receive. In other cases, it will be the judge who determines the alimony amount awarded.

To do so, the judge will consider:

• The couple’s current income
• The paying spouse’s ability to pay
• The receiving spouse’s need
• The length of the marriage
• Each spouse’s expenses
• What child support has been awarded to the receiving spouse
• Parenting arrangements

Ultimately, alimony is a way for the spouse with a lower income to get back on their feet after a divorce. In cases where the marriage lasted a long time and the receiving spouse ended up staying home and sacrificing their career to take care of the children alimony may be permanent. This is because they may lack the experience or skills to find gainful employment.

However, the court’s first concern is fairness. To arrive at this number, the court will look at:

• The future earning capacity of both spouses
• The ability of the receiving spouse to become self-sufficient
• Any obligations that resulted from the marriage such as the need to care for a child with a disability.

Is There Anything You Can Do When Alimony Is Not Being Paid?

If the court has ordered alimony to be paid and this is not happening, the spouse who is not paying may be held accountable. In this case, the receiving spouse may file a motion in court, which can result in fines and penalties. 

The spouse who has not paid may also be required to make the missing payments, and they may also be asked to appear in court where the judge will decide on the best course of action going forward.

Is There a Way to Get a Divorce Without Having to Pay Alimony?

In most cases, it is impossible to avoid paying alimony, particularly when the receiving spouse earns considerably less than the paying spouse and the marriage has lasted a long time.

You may avoid paying alimony in those cases perhaps when your spouse had an affair or stop making payments when they remarry. You may also be able to demonstrate that your spouse now has a higher-paying job, or you may be able to negotiate to give your spouse some assets in exchange for not paying alimony.

Working with a divorce attorney is certainly one way to ensure that your rights and obligations under state law is understood and applied at a time that can be both emotionally and financially stressful.