Alimony

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Alimony, also called aliment (Scotland), maintenance (England, Ireland, Northern Ireland, Wales, Canada, New Zealand), spousal support (U.S., Canada) and spouse maintenance (Australia), [1] is a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. The obligation arises from the divorce law or family law of each country. In most jurisdictions, it is distinct from child support, where, after divorce, one parent is required to contribute to the support of their children by paying money to the child's other parent or guardian.

Contents

Etymology

The term alimony comes from the Latin word alimonia ("nourishment, sustenance", from alere, "to nourish"), from which the terms alimentary (of, or relating to food, nutrition, or digestion), and aliment (a Scots Law rule regarding sustenance to assure the wife's lodging, food, clothing, and other necessities after divorce) are also derived. [2]

History

The Code of Hammurabi (1754 BC) declares that a man must provide sustenance to a woman who has borne him children so that she can raise them:

137. If a man wish to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall give that wife her dowry, and a part of the usufruct of field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart. [3]

The above law only applies to women who had children with her husband. This fits more closely with the definition of child support in some jurisdictions.

Alimony is also discussed in the Code of Justinian. [4]

The modern concept of alimony is derived from English ecclesiastical courts that awarded alimony in cases of separation and divorce. Alimony pendente lite was given until the divorce decree, based on the husband's duty to support the wife during a marriage that still continued. Post-divorce or permanent alimony was also based on the notion that the marriage continued, as ecclesiastical courts could only award a divorce a mensa et thoro, similar to a legal separation today. As divorce did not end the marriage, the husband's duty to support his wife remained intact. [5]

Liberalization of divorce laws occurred in the 19th century, but divorce was only possible in cases of marital misconduct. As a result, the requirement to pay alimony became linked to the concept of fault in the divorce. [6] Alimony to wives was paid because it was assumed that the marriage, and the wife's right to support, would have continued but for the misbehavior of the husband. Ending alimony on divorce would have permitted a guilty husband to profit from his own misconduct. In contrast, if the wife committed the misconduct, she was considered to have forfeited any claim to ongoing support. However, during the period, parties could rarely afford alimony, and so it was rarely awarded by courts. [5] As husbands' incomes increased, and with it the possibility of paying alimony, the awarding of alimony increased, generally because a wife could show a need for ongoing financial support, and the husband had the ability to pay. [5] [7] No-fault divorce led to changes in alimony. Whereas spousal support was considered a right under the fault-based system, it became conditional under the no-fault approach. [7] According to the American Bar Association, marital fault is a "factor" in awarding alimony in 25 states and the District of Columbia. [8] Permanent alimony began to fall out of favor, as it prevented former spouses from beginning new lives, [7] though in some states (e.g., Massachusetts, Mississippi, and Tennessee), permanent alimony awards continued, but with some limitations. [9] [10] [11] [12] Alimony moved beyond support to permitting the more dependent spouse to become financially independent or to have the same standard of living as during the marriage or common law marriage, though this was not possible in most cases. [5] [13]

In the 1970s, the United States Supreme Court ruled against gender bias in alimony awards and, according to the U.S. Census Bureau, the percentage of alimony recipients who are male rose from 2.4% in 2001 to 3.6% in 2006. [14] In states like Massachusetts and Louisiana, the salaries of new spouses may be used in determining the alimony paid to the previous partners. [11] [15] Most recently, in several high-profile divorces, women such as Britney Spears, Victoria Principal, and Jessica Simpson have paid multimillion-dollar settlements in lieu of alimony to ex-husbands. [16] [17] According to divorce lawyers, aggressive pursuit of spousal support by men is becoming more common, as the stigma associated with asking for alimony fades. [16] [17]

Reckoning

Once dissolution proceedings commence, either party may seek interim or pendente lite support during the course of the litigation.

Where a divorce or dissolution of marriage (civil union) is granted, either party may ask for post-marital alimony. It is not an absolute right, but may be granted, the amount and terms varying with the circumstances. If one party is already receiving support at the time of the divorce, the previous order is not automatically continued (although this can be requested), as the arguments for support during and after the marriage can be different.

Unless the parties agree on the terms of their divorce in a binding written instrument, the court will make a determination based on the legal argument and the testimony submitted by both parties. This can be modified at any future date based on a change of circumstances by either party on proper notice to the other party and application to the court. The courts are generally reluctant to modify an existing agreement unless the reasons are compelling. In some jurisdictions the court always has jurisdiction to grant maintenance should one of the former spouses become a public charge.

By country

Canada

Types of spousal support

In Canada, spousal support may be awarded upon divorce, under the federal Divorce Act , or upon separation without divorce under provincial statutes. There are generally three different forms of spousal support awarded:

  1. Compensatory support – This form of support compensates an individual for her or his contributions to the relationship as well as for any losses that individual has suffered;
  2. Non-compensatory support – In some cases support may be awarded on a needs basis. This form of support may be awarded by a Court where an individual is sick or disabled; and
  3. Contractual support (divorce agreement) – This form of support upholds a contract between the parties which governs support payments. [18]

Married spouses and common-law spouses

Both married spouses and common-law spouses may be entitled to spousal support. An important distinction between the two is that common-law spouses must start an action claiming spousal support within one year of the breakdown of the relationship. A second important distinction is that only married couples may divorce under the federal Divorce Act , common-law spouses may only separate under provincial legislation, such as Ontario's Family Law Act [19] or British Columbia's Family Relation's Act. [20] No such limitation arises for married individuals. In addition to being in a marriage or common-law relationship, courts will look at the conditions, means, needs and other circumstances of each spouse. This includes:

  1. The length of time the spouses cohabited;
  2. The functions performed by each spouse during the relationship; and
  3. Any existing orders or agreements.

This is by no means an exhaustive list of factors which the court will consider when determining entitlement. Each case is determined on its own unique set of circumstances.

Factors for awarding spousal support

The federal Divorce Act at s.15.2 (6) states that there are four objectives of spousal support orders:

  1. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  2. Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  3. Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  4. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [18]

Amount and duration

The longer the length of cohabitation and the greater the disparity between each party’s incomes, the larger an award of spousal support will be and the longer the duration will be. [21] Although there is no set formula to determine the exact amount and duration of spousal support, there are guidelines, referred to as the Spousal Support Advisory Guidelines, which provides ranges for both. the Spousal Support Advisory Guidelines calculate ranges for support after taking into account the relevant factors. Although the courts are not required to abide by the Spousal Support Advisory Guidelines, they are required to take them into account when deciding on the issue of spousal support. [22] The length of the relationship will be taken into account when determining how long spousal support should be paid for. Awards for spousal support can be for a limited term or indefinite. [22]

While declaring bankruptcy does not absolve Canadians of obligations to pay alimony or child support, a 2011 ruling by the Supreme Court of Canada established that under current laws "equalization payments agreed to as part of a divorce are considered debts, and are wiped off a person's balance sheet when they declare bankruptcy." [23] [24]

Czech Republic

Laws of the Czech Republic provide for spousal maintenance both during marriage and after divorce. As main principle, both spouses have the right for generally equal standard of living during the marriage. [25]

The same "generally equal standard of living" applies also to post-divorce period in special cases, when the payee wasn't mostly responsible for the failure of marriage or did not agree with the divorce and the payee suffered serious harm due to the divorce and hadn't committed an act of domestic violence against the payer. In such case the payee may request alimony in amount providing "generally equal standard of living" for a period adequate to circumstances, but no longer than three years. [25]

If those special conditions are not met, both of the divorced have mutual spousal maintenance obligation in case that one of them is not able to provide for themselves due to circumstances originating in marriage, if payment of alimony is reasonable under general circumstances that each of the divorced found themselves in. [25]

England

English courts award spousal maintenance, either in a lump sum or in installments, when one party cannot support themselves without payments from the other party. [26]

Under traditional English common law, a woman gave up her personal property rights on marriage (see Coverture). Upon separation from marriage, the husband retained the right to the wife's property, but, in exchange, had an ongoing responsibility to support the wife after dissolution of the marriage. [6] [7] English law was amended by legislation including the Married Women's Property Act 1870 and Married Women's Property Act 1882 which reformed women's property rights relating to marriage, by, for example, permitting divorced women to regain the property they owned before marriage. [7] [27] [28] [29]

India

Alimony in India is governed by personal laws based on religion: [30]

Hindus: Governed by the Hindu Marriage Act, 1955 (Section 24 for pendente lite, Section 25 for permanent alimony).

Christians: Governed by the Divorce Act, 1869 (Section 36 for pendente lite, Section 37 for permanent alimony).

Parsis: Governed by the Parsi Marriage and Divorce Act (Section 39 for pendente lite, Section 40 for permanent alimony).

Secular: Special Marriage Act, 1954 (Section 36 for pendente lite, Section 37 for permanent alimony).

Italy

The duty of mutual assistance of the spouses turns into an obligation of maintenance following the personal separation. The spouse who is not responsible for the separation has, in fact, the right to receive from the other "what is necessary for its maintenance" (Article 156 of the Italian Civil Code).

In case of dissolution of the marriage, art. 5, paragraph 6, of Law 898/1970 provides for the obligation for a spouse to periodically provide the other with a check "when the latter does not have adequate means or in any case cannot obtain them for objective reasons", the determination of which it is entrusted to certain specific parameters (conditions of the spouses, reasons for the decision, personal and economic contribution given by each to the family management and to the formation of the patrimony of each or the common one, income of both, duration of marriage). [31]

Japan

Under the Japanese Civil Code, spousal support is available while the parties are married, but terminates upon divorce. Japanese courts typically award a one-time payment of isha-ryo, or consolation money, to the "wronged" spouse in the divorce, a type of compensation which does not exist in some other jurisdictions such as most U.S. states. [32]

United States

In the U.S., state law establishes requirements regarding alimony (and child support) payments, recovery and penalties. A spouse trying to recover back alimony sometimes may use only the collection procedures that are available to all other creditors, such as reporting the amount due to a collection agency, or seek enforcement through contempt of court proceedings against an obligor who is able to pay but has failed to do so. [33] Alimony obligations are not dischargeable in bankruptcy. [34]

The determination of alimony varies greatly from state to state within the U.S. [6] Some state statutes, including those of Texas, Montana, Kansas, Utah, Kentucky and Maine, give explicit guidelines to judges on the amount and/or duration of alimony. In Texas, Mississippi and Tennessee, for example, alimony is awarded only in cases of marriage or civil union of ten years or longer and the payments are limited to three years unless there are special, extenuating circumstances. Also, in case of Texas, there is a legal presumption while dealing with a spousal maintenance case, that the alimony isn't appropriate. Once the requesting spouse can reasonably demonstrate that he/she has given the best effort in good faith to secure an independent income but failed, only then the case is taken into consideration. [35] Furthermore, the amount of spousal support in Texas is limited to the lesser of $5,000 per month or 20% of the payee's gross income. [36] [37] [38] In Delaware, spousal support is usually not awarded in marriages of less than 10 years. [36] In Kansas, alimony awards cannot exceed 121 months. [36] In Utah, the duration of alimony cannot exceed the length of the marriage. [36] In Maine, Mississippi, and Tennessee alimony is awarded in marriages or civil union of 10 to 20 years and the duration is half the length of the marriage barring extenuating circumstances. [36] Other states, including California, Nevada and New York, have relatively vague statutes which simply list the "factors" a judge should consider when determining alimony (see list of factors below). [36] [39] [40] [41] In these states, the determination of duration and amount of alimony is left to the discretion of the family court judges who must consider case law in each state. In Mississippi, Texas and Tennessee, for example, there are 135 Appellate Cases in addition to 47 sections of State Statute that shape divorce law. As a result of these Appellate Cases, for example, Mississippi judges cannot order an end date to any alimony award. In 2012, Massachusetts signed into law comprehensive alimony reform. This law sets limits on alimony and eliminates lifetime alimony. Similarly, in 2013, Colorado signed into law alimony reform, creating a standardized non-presumptive guideline upon which courts can rely. [42]

In general, there are four types of alimony: [43]

  1. Temporary alimony: Support ordered when the parties are separated prior to divorce. Also called alimony pendente lite, which is Latin, meaning, "pending the suit".
  2. Rehabilitative alimony: Support given to a lesser-earning spouse for a period of time necessary to acquire work outside the home and become self-sufficient.
  3. Permanent alimony: Support paid to the lesser-earning spouse until the death of the payor, the death of the recipient, or the remarriage of the recipient.
  4. Reimbursement alimony: Support given as a reimbursement for expenses incurred by a spouse during the marriage (such as educational expenses).

Some of the possible factors that bear on the amount and duration of the support are: [44]

FactorDescription
Length of the marriage or civil unionGenerally, alimony lasts for a term or period. However, it will last longer if the marriage or civil union lasted longer. A marriage or civil union of over 10 years is often a candidate for permanent alimony.
Time separated while still marriedIn some U.S. states, separation is a triggering event, recognized as the end of the term of the marriage. Other U.S. states do not recognize separation or legal separation. In a state not recognizing separation, a 2-year marriage followed by an 8-year separation will generally be treated like a 10-year marriage.
Age of the parties at the time of the divorceGenerally, more youthful spouses are considered to be more able to 'get on' with their lives, and therefore thought to require shorter periods of support.
Relative income of the partiesIn U.S. states that recognize a right of the spouses to live 'according to the means to which they have become accustomed', alimony attempts to adjust the incomes of the spouses so that they are able to approximate, as best possible, their prior lifestyle.
Future financial prospects of the partiesA spouse who is going to realize significant income in the future is likely to have to pay higher alimony than one who is not.
Health of the partiesPoor health goes towards need, and potentially an inability to support oneself. The courts are disinclined to leave one party indigent.
Fault in marital breakdownIn U.S. states where fault is recognized, fault can significantly affect alimony, increasing, reducing or even nullifying it. Many U.S. states are 'no-fault' states, where one does not have to show fault to get divorced. No-fault divorce spares the spouses the acrimony of the 'fault' processes, and closes the eyes of the court to any and all improper spousal behavior. In Georgia, however, a person who has an affair that causes the divorce is not entitled to alimony. [45]

Prenuptial agreements

Prenuptial agreements are recognized in all fifty states and the District of Columbia, and every jurisdiction allows parties to agree to spousal support and alimony terms in a premarital or postnuptial agreement, if their marital agreement is prepared in accordance with state and federal law requirements.  Divorce courts retain the discretion to refuse to enforce prenuptial agreement terms restricting a party’s right to seek alimony if that party would have to seek public assistance as a result of the alimony waiver, or if the restriction on the right to seek alimony is unconscionable or unfair when the divorce occurs. Lack of financial disclosure prior to signing a prenuptial agreement or a post-nuptial agreement by the party against whom alimony is sought may also cause a court to invalidate a waiver of alimony provision.  Prenuptial Agreements with valid alimony waivers or restrictions entered into in one state should be fully enforceable by the courts of another state in the event of a divorce, unless the terms of the prenuptial agreement are in material violation of the foreign jurisdiction's laws.

California is the only state with a law that requires that the parties be represented by counsel if spousal support (alimony) is limited by the agreement. [46]

Instead of a complete waiver of the right to seek alimony, prenuptial agreements and post-nuptial agreements can also contain terms where the parties agree to a set amount of guaranteed alimony for the lower wage earner at the time of divorce, or a cap/limit on the amount of alimony either party can seek in the event of a divorce.

Reform

In the United States, family laws and precedents as they relate to divorce, community property and alimony vary based on state law. Also, with new family models, "working couples", "working wives", "stay-at-home dads", etc., there are situations where some parties to a divorce question whether traditional economic allocations made in a divorce are fair and equitable to the facts of their individual case. Some groups have proposed various forms of legislation to reform alimony parameters (i.e. amounts and term). [7] [11] [15] [47] [27] [48] [49] Alimony terms are among the most frequent issues causing litigation in family law cases. [7] [9] Eighty percent of divorce cases involve a request for modification of alimony. [28] [50]

Some states (e.g. Florida, Texas, Maine) are moving away from permanent alimony awards that are intended to maintain a spouse's standard of living enjoyed during the marriage and are moving towards durational or rehabilitative alimony. [51] [52] In other states, like Mississippi and Tennessee, alimony is usually awarded for life. [11] [53] [54]

Some of the critical issues that proponents and opponents of alimony reform disagree upon are:

  • Whether alimony should be temporary or permanent [27]
  • Regardless of duration, should alimony payers have the unquestionable right to retire? [55]
  • Does the lesser earning spouse deserve alimony to meet his or her basic needs (sustenance) or enough to sustain "the lifestyle accustomed to during the civil union or marriage"? [27]
  • Should the income and assets of a new spouse be used in determining how much alimony gets paid? [11]
  • How clear and prescriptive should state statutes be versus allowing a larger degree of Judicial Discretion? [11] [56] [57] [58]

In 2012, bills were introduced in the New Jersey Assembly and Senate. The Assembly passed a bill calling for a Blue Ribbon Commission to address Alimony Reform. [59] The Senate has a similar bill pending that has not yet been posted in the Judiciary Committee. [60] The NJ Matrimonial Bar Association has been vehemently fighting against Alimony Reform, led by Patrick Judge Jr. chairman of the Family Law section of the New Jersey State Bar Association. [61] [62] Attorney Judge stated that the New Jersey State Bar Association ("NJSBA") objected to the inclusion of individuals with a vested interest in reforming alimony on the Blue Ribbon Commission and that the NJSBA supported the "establishment of a commission [to study alimony reform] but only as long as the commission is constituted so that a fair and unbiased review of the current alimony laws takes place…[and] should not be predisposed to an outcome…." [63]

In 2023 Florida passed an alimony reform bill (SB 1416) which eliminated permanent alimony and established a process for allowing alimony payers to request modifications when they want to retire. The bill allowed judges to reduce or terminate alimony obligations based on a number of factors. [64] The passage came after decades of contentious debate garnering three vetoes of similar bills. [65] Some groups that were previously major opponents of the reform approved of the 2023 policy, such as Florida Family Fairness and The Florida Bar. [64]

California, Connecticut, Georgia, Illinois, Oklahoma, New York, South Carolina, Tennessee, Utah, and West Virginia have all passed laws that allow for the modification or termination of alimony upon demonstration that the recipient is cohabitating with another person. [66] In April 2009, the Governor of New Jersey, Jon Corzine, signed into law changes in the alimony statutes for his state which would bar alimony payments to parents who kill, abuse, or abandon their children. [67]

Taxation

In divorces and separation agreements signed on December 31, 2018 and earlier, alimony is tax-deductible for the payer, and treated as taxable income for the recipient. Pursuant to the Tax Cuts and Jobs Act of 2017, for divorce judgments dated January 1, 2019 and later, spousal support is treated as not-taxable and non-deductible for either party. [68]

See also

Related Research Articles

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<span class="mw-page-title-main">Canadian family law</span>

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A postnuptial agreement is a written agreement executed after a couple gets married, or have entered a civil union, to settle the couple's affairs and assets in the event of a separation or divorce. It may be "notarized" or acknowledged and may be the subject of the statute of frauds. Like the contents of a prenuptial agreement, provisions vary widely but commonly includes provisions for division of property and spousal support in the event of divorce, death of one of the spouses, or breakup of marriage.

<span class="mw-page-title-main">Divorce law in Sweden</span>

Divorce law in Sweden concerns the dissolution of marriage, child support, alimony, custody and the division of property. Divorce restores the status of married people to individuals, leaving them free to remarry. The divorce laws in Sweden are known to be considerably liberal compared to other jurisdictions.

In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Court for Divorce and Matrimonial Causes. It was one of the actions relating to marriage, over which the ecclesiastical courts formerly had jurisdiction.

A divorce settlement is an arrangement, adjustment, or other understanding reached, as in financial or business proceedings, between two adults who have chosen to divorce. It serves as the final legal agreement between these adults for documenting the terms of their divorce.

<i>Macleod v Macleod</i>

Macleod v Macleod [2008] UKPC 64 was a judgment of the Judicial Committee of the Privy Council in an appeal originating from the Isle of Man. It made clear that postnuptial agreements in the Isle of Man cannot be varied by a court other than for sufficient policy reasons. Although technically only applying to Manx postnuptial agreements, the judgment is treated with authority in the United Kingdom.

References

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  35. ↑ Todd, David (2010-09-29). Texas Divorce and Family Law Guide: What You Should Know Before You Call a Lawyer. Lulu.com. ISBN   978-0-557-69368-9.
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  37. ↑ "Maine Statute".
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  42. ↑ O'Connor, Colleen (18 October 2013). "New law changes alimony landscape for divorcing Colorado couples". The Denver Post. Retrieved 24 November 2023.
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  44. ↑ Bussayabuntoon, Joann (2015). "Age and Health as Factors for Court-Ordered Alimony Decisions". Contemporary Legal Issues. 22: 309. Retrieved 28 August 2021.
  45. ↑ Wadler, Joyce (January 13, 2011). "Don't Try This at Home". The New York Times . p. D1.
  46. ↑ See subsection (c) of California Family Code, Sec 612.
  47. ↑ Matlack, Tom (November 17, 2011). "Divorce Reform in Massachusetts: David vs. Goliath". Huffington Post .
  48. ↑ Goodnough, Abby (November 10, 2009). "Retirees Still Liable for Alimony, Massachusetts Court Rules". The New York Times . Retrieved April 23, 2010.
  49. ↑ Ashbrook, Tom (November 3, 2009). "Til death do they pay?". On Point, NPR .
  50. ↑ Christopher R. Musulin, Esquire. "Should New Jersey Adopt a Formula Approach for Spousal Support?: Article on Alimony for New Jersey State Bar Association Annual Meeting, May 2009" (PDF). The New Jersey Bar Association. Archived from the original (PDF) on 2011-07-08.
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  52. ↑ von Hauzen, Esp., Barbara. "Should Permanent Alimony Be Eliminated?" (PDF). The Reformer. Massachusetts School of Law. Archived from the original (PDF) on 2011-07-27.
  53. ↑ Martin, Frank (August 2002). "From Prohibition to Approval: The Limitations of the 'No Clean Break' Divorce Regime in the Republic of Ireland". International Journal of Law, Policy and the Family. Oxford Journals. 16 (2): 223–259. doi:10.1093/lawfam/16.2.223.
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  64. 1 2 "Florida Gov. DeSantis signs bill ending permanent alimony - CBS Miami". www.cbsnews.com. 2023-06-30. Retrieved 2023-07-07.
  65. ↑ Florida, Dara Kam, News Service of. "'This is a death sentence for me': Florida Republican women say they will switch parties after DeSantis approves alimony law". Orlando Weekly. Retrieved 2023-07-07.{{cite web}}: CS1 maint: multiple names: authors list (link)
  66. ↑ "Florida State Senate: Interim Project Report 2005-146" (PDF). State of Florida Senate.
  67. ↑ Hester, Tom (April 16, 2009). "Eliminating alimony, inheritance rights for murderers, abusers". The New Jersey News Room. Archived from the original on September 5, 2012. Retrieved December 19, 2009.
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