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Alimony, Spousal Support, Divorce & Family Law
Alimony is payments that one spouse may be ordered to pay another spouse for support as a result of a divorce. In Rhode Island divorce, some spouses qualify for alimony from the other spouse. Alimony is also known as spousal support or spousal maintenance.
R.I.G.L 15-5-16 delineates the factors that the Rhode Island family court judge should use in determining whether a husband or wife qualifies for alimony payment from the other spouse.
The Rhode Island Supreme Court Stated "Alimony is a rehabilitative tool intended to provide temporary support until a spouse is self-sufficient, and is based purely on need." Berard v. Berard. The Rhode Island Alimony statute is set forth below. You should contact a Rhode Island divorce lawyer to get legal advice concerning your case.
Generally, alimony is awarded for a specific period of time, in increments which are usually weekly or monthly. Alimony could be awarded as a result of a divorce settlement. If a party requests alimony or is unwilling to waive alimony and the parties cannot agree to an alimony award, then alimony may be awarded at the divorce trial.
Temporary alimony may be awarded by the Rhode Island family court towards the beginning of the divorce. This temporary alimony award will stay in effect until the final decision by the Rhode Island family court judge at the divorce trial.
The intent of alimony is rehabilitative in nature. "alimony should be payable for a short, but specific and terminable period of time, which will cease when the recipient is, in the exercise of reasonable efforts, in a position of self-support." Thompson v. Thompson.
Alimony is usually awarded on a temporary basis but can be awarded on an indefinite and (perhaps what turns out to be permanent) basis if the facts justify indefinite alimony. The Rhode Island Supreme Court ruled that "Alimony may be awarded even for an indefinite period as long as the trial justice considers all the statutory factors."
Indefinite alimony may be ordered in a case where a party is seriously disabled or as a result of old age is unable to work. Indefinite alimony could also be awarded in a plethora of different factual circumstances.
The court must look at "The health, age, station, occupation, amount and source of income, vocational skills, and employability of the parties" in making an alimony determination.
Ability to pay is a crucial factor in determining the amount of alimony and whether or not alimony should be awarded. There are many cases in which a spouse is in desperate need of alimony but the other spouse does not have the ability to pay sufficient alimony. In some cases, the spouse does not have an ability to pay because of a child support obligation to the other spouse or child support owed for other children.
Furthermore, according to The Rhode Island Supreme Court, "Section 15-5-16 does not explicitly prohibit one lump-sum award." However, lump sum award alimony appears to be disfavored under Rhode Island law.
The best candidate for alimony is a spouse who put aside his or her career ambitions for many years to be a homemaker and care for the children. As a result of the role of nurturing the children and establishing and maintaining a home, the other spouse was able to advance his or her career in order to be able to afford to pay alimony.
In some cases, the family made a decision that one parent would put aside his or her career aspirations to raise a child or minor children. As a result, the homemaker's skill set is so outmoded that he or she is unable to obtain suitable employment. This is usually because the homemaker's job skills, employment history, licenses, training, skills, experience or degrees became outmoded or irrelevant. Perhaps the person does not have enough of an employment history to be able to be self supporting and self sufficient without receiving alimony. In some cases the spouse is unable to work because the spouse currently has a physical custody and placement of a young child.
For this type of person, the intent of an award of rehabilitative alimony would be to allow a person to build a work history, advance his or her education, employment training, licenses etc. so that the person can be self supporting and self sufficient in the future.
Another type of person who is an excellent candidate for alimony is a person who is temporarily disabled or permanently disabled especially if the marriage has been a long marriage. Another good candidate for alimony is a spouse who has severely disabled children which renders it difficult or impossible for the person to seek employment.
"The assignment of property must precede any determination of alimony because the needs of each party will be affected by the equitable distribution of the marital estate."
Rhode Island child custody and placement plays a role in an alimony determination. If the parties have children, the court must also make an award of Rhode Island child support before the court determines an alimony award. The child support award plays a large role in determining the resources of the parent with physical custody of the minor child. A child support order also may severely affect an individuals ability to afford alimony in the future.
The needs and expenses of both parties is crucial in determining alimony. Needs and expenses are intertwined with the standard of living of the parties. The court may look at the following types of expenses and needs: rent, mortgage, taxes, insurance, food, health insurance, uninsured medical expenses, prescription expenses, dental expenses, cable, internet, utilities, heat, gas, vehicle expenses etc.
Although conduct is a factor in alimony determinations per the Rhode Island Alimony Statute, it is not a significant factor since alimony is basically need based. Conduct such as an affair, drug or alcohol addiction, gambling problem, domestic violence plays more of a role in equitable division of assets then in an alimony determination.
An award of alimony has Federal Income Tax consequences. Alimony is taxable to the spouse who receives the alimony and is deductible by the spouse who pays alimony. In order to qualify as alimony, alimony must terminate on the death of the payee spouse and upon the remarriage of the payee spouse. Payment of alimony is a taxable event to the payee spouse.
This is very different from payment of child support. Payment of child support is a non taxable event. The parent who pays child support is not entitled to a deduction for payment and the receiving spouse does not include the payment as income. Therefore it is tax free money to the parent who receives the child support. 26 U.S.C.A. 71.
The IRS has rules and regulations concerning what types of payments constitute alimony. The IRS has rules and regulations concerning when a parent tries to mask child support payments as alimony. Please consult with a Rhode Island divorce and family law attorney concerning the tax implications and rules concerning alimony. A detailed explanation of tax rules, laws and regulations as they pertain to alimony is beyond the scope of this article.
The designation of payments as alimony rather than property distribution has consequences in bankruptcy proceedings. An alimony award is generally not dischargeable in bankruptcy. The interrelation between family law, alimony and bankruptcy is also beyond the scope of this article. Please consult with a Rhode Island bankruptcy lawyer/attorney.
Another important issue, perhaps crucial issue, is whether or not the parties enter into a property settlement agreement in the divorce. In order for the alimony to be completely non modifiable, the alimony must be agreed to in a property settlement agreement. The court has no power to modify a property settlement agreement. A court can only enforce or interpret a property settlement agreement. In the event of impossibility of payment, the court could award equitable relief, equitably reforming the contract between the parties. Please contact a Rhode Island divorce attorney concerning whether or not it is advisable to draft a property settlement agreement in your case.
Proper drafting of a property settlement agreement and alimony provisions in a property settlement agreement is beyond the scope of this article.
The length of the marriage is a very important factor that the family court judge looks at in determining alimony. The court also needs to hear testimony concerning the party requesting alimony plan to become self supporting and self sufficient.
The court can also look at the relative ability of both spouses to earn income and or acquire assets and property in the future.
If a person is ordered to pay alimony and does not pay alimony, the other person can file a contempt motion. If a person is found in willful contempt of a court order they could be jailed until they purge themselves of the contempt. Rhode Island family court judges take failure to comply with their alimony orders very seriously. If the alimony award is modifiable, either party could file a motion to modify the alimony based on a substantial change in circumstances.
Rhode Island state law requires a 60-day waiting period after the couple has filed a petition, but the court reserves the right to hear cases sooner should it be deemed appropriate. During the 60 days, the court has the discretion to investigate claims and order counseling.
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