How Courts Determine Alimony

In many jurisdictions judges enjoy a wide degree of latitude in deciding questions about alimony, its amount and duration. Courts consider a variety of factors in assigning alimony.

As a rule, the first consideration is the ability of a spouse to pay. The court considers a spouse’s gross income and subtracts all mandatory deductions to calculate the net income. These mandatory deductions include income taxes, Social Security and health care, but not union dues. The court puts a higher priority on support payments than voluntary debts because a default of voluntary debt is less important than an impoverished spouse.

The court considers both spouses’ ability to earn. Judges not only consider what a spouse actually earns but also his or her earnings potential. This includes the ability of a spouse to be self-supporting.  Marketable skills and the ability to work outside the home are also considered. For example, custody of pre-school children and inadequate daycare could make it impossible for a mother to work outside the home.

The ability to be self-supporting differs from actually being self-supporting. For example, if a spouse has marketable skills but refuses to look for work, the court is likely to limit the amount of alimony and the length of alimony the or she receives. The business executive who gives up corporate management to become a street musician will find the court unreceptive to his argument for alimony.

In many jurisdictions, no alimony is awarded if both spouses are able to support themselves. Sometimes courts order rehabilitative alimony when spouse was dependent on the other during the marriage, that spouse is often awarded alimony for a rehabilitative period. This could be a time period lasting anywhere from several months to several years.

If the recipient spouse becomes self-supporting before the end of the court-ordered support period, the paying spouse can petition for the courts to terminate the alimony; if, however, the spouse is unable to become self-supporting during the allotted time, he or she may also petition the courts for an extension of alimony. In some states this can only be done to keep the spouse from going on welfare.

When a court sets alimony, it often considers the standard of living during the marriage and tries to maintain this standard for both spouses where possible. Maintenance of a standard of living is more of a goal when it comes to alimony than a guarantee.

The courts generally decline to award alimony when the marriage was short and childless. If there are children under school age, however, the courts often award alimony to the spouse who is given physical custody. Most courts feel that a child under school age is better served by having a full time parent at home.

Courts also consider the tax consequences of the alimony (as well as child support). Alimony paid under a written court order is deductible by the spouse who pays and is taxable to the recipient; child support, on the other hand, is tax-free to the recipient and not deductible by the spouse who pays.

At the time of divorce, the court allocates debt incurred during the marriage between the spouses based on who benefits most from the asset that came with the debt. If the court orders a spouse to pay a large portion of the marital debts, it often reduces the amount of alimony that the spouse is ordered to pay.

Courts consider not the amount of financial support given during a marriage but also the amount of emotional support. If one spouse worked and supported the other spouse through school, some states will take this into consideration. The spouse could ask for and receive compensation in the form of alimony for all the years he/she worked why the other was in school.

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