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Alimony in Mississippi
(provided by M. Craig Robertson, PLLC, Attorney at Law )
Alimony is alive and well in Mississippi. There are multiple types of alimony, each with its own characteristics, and there are also forms of alimony known as "hybrid" alimony where the drafting attorney carves out each aspect of the alimony definition. The types of alimony recognized by our courts are permanent periodic alimony, lump sum alimony, rehabilitative alimony and reimbursement alimony. The characteristics of alimony include whether it is paid in one lump sum or installments, whether it is modifiable, whether it ceases upon the remarriage of the receiving spouse, whether it ceases upon the death of the paying spouse, whether it ceases upon the death of the receiving spouse and any other factor that may be applicable to your situation.
Payments from one spouse to another are deductible for tax purposes from the paying spouse's income and includable in the income of the receiving spouse if they are required under the divorce or separation instrument, a joint tax return is not filed, payments are in cash (which includes checks or money orders), payments are not designated in the divorce instrument specifically as being not alimony, the spouses are not members of the same household, payments are not required after the death of the recipient spouse and the payment is not designated as child support. You should discuss the tax implications of your divorce with your tax attorney or your CPA.
Permanent periodic alimony is paid from one party to the other until their death or remarriage. This form of alimony is taxable as income to the receiving spouse, usually the wife, and is modifiable after the divorce if there is an unforeseen and material change in circumstances. If you are open to liability to pay alimony, we will avoid this type at all costs- as you may find yourself living in an assisted living facility using your social security check to pay your former wife of thirty years ago her $200.00 per month. Also, if we hope that you gain alimony, we will consider the likelihood that you may remarry in the near future coupled with the tax implications of the permanent alimony. Ideally, if we are hoping to receive alimony we will try to put multiple types of alimony in the Property Settlement Agreement to cover our bases, but a Judge will rarely be as creative with the definitions of alimony to accomplish our goals. The factors to determine whether you may be entitled to permanent periodic alimony are called the Armstrong factors:
- The income and expenses of the parties;
- The earning capacities of the parties;
- The needs of each party;
- The obligations and assets of each party;
- The length of the marriage;
- The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
- The age of the parties;
- The standard of living of the parties, both during the marriage and at the time of the support determination;
- The tax consequences of the spousal support order;
- Fault or misconduct;
- Wasteful dissipation of assets by either party; or
- Any other factor deemed by the court to be "just and equitable" in connection with the setting of spousal support.
Lump sum alimony is a different animal altogether. As the name implies, it is often paid as one lump sum, usually to balance the equities in a property division. Lump sum alimony is typically not modifiable and typically survives the death or remarriage of either party. Sometimes a lump sum payment is not possible, so the rules are often bent to create lump sum "installment" alimony, which is paid out over time. Lump sum alimony is typically not taxable to the receiving spouse and therefore is not deductible from the income of the paying spouse, but this is the alimony that is often tweaked for taxability purposes by either making it continue or cease upon the death of the receiving spouse. The factors to be considered for lump sum alimony are:
- Whether the spouse seeking lump sum alimony made a substantial contribution to the potential payor's accumulation of wealth;
- Length of marriage;
- Disparity between the parties' separate estates; and
- Whether the spouse seeking lump sum alimony would lack financial security in the absence of an award of lump sum alimony.
Rehabilitative alimony provides for a party who is trying to become self-supporting and prevents that party from becoming destitute while searching for a means of income for a fixed period of time. This could be a payment to a spouse who wants or needs to go back to college. Reimbursement alimony is a form of alimony that specifically repays a spouse for a contribution to the marriage that allowed the other spouse to further their career or personal goals in some way. A good example of when this would be applicable is in the case of a doctor's wife who worked and took care of the children while her husband attended medical school. Reimbursement alimony may be appropriate in this instance.
Information provided by:
M. Craig Robertson, PLLC, Attorney at Law located at
http://www.robertson.ms
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