If you are negotiating a marital settlement agreement or preparing for a divorce trial that includes a request for alimony, spousal support or maintenance, consider these facts and arguments before your negotiation or litigation begins.
- Support is not gender based. You or your spouse may be ordered to pay alimony, spousal support or maintenance (here after collectively referred to as “support”).
- You do not need to have children to receive spousal support or alimony.
- Support is an income substitute that may be paid temporarily, for a limited term, long-term or in a lump sum.
- A person’s right to receive support is not intrinsically guaranteed, but must be established by agreement or a court order entered upon a finding that one spouse has the means and the other, the need.
- At trial, a person’s right to receive support is determined by and subject to, a judge or commissioner’s discretion.
- It is almost impossible to predict whether a person may receive support, how much may be awarded or what the duration of support may be.
- Once the legal right to receive support is established, it is an enforceable court order and a spouse’s failure to make ordered payments can lead to legal consequences.
- Unless a person is incapacitated or unable to work due to a medical condition or disability, it is a general rule that he or she must become self-supporting within a reasonable period of time after divorce, dissolution or legal separation.
- Support payments may remain fixed for a predetermined period of time then “step down” or be reduced for another fixed period of time. Support step-downs may continue at regular intervals or upon the occurrence of significant milestones until support payments are reduced to nothing and/or the right to receive support is terminated.
- Support may be modified, terminated and/or waived.
- Support is taxable income of the recipient and tax deductible by the paying spouse.
- A paying spouse may lose the ongoing tax deductibility of support payments if the payments are scheduled in a way that triggers IRS “recapture” rules.
- Family support and unallocated alimony are support alternatives that may be awarded or accepted in divorce, dissolution or legal separation in lieu of child support and maintenance, alimony or support for tax reasons.
- Support awards are becoming less common and are paid for shorter periods of time.
- Support usually terminates automatically upon the remarriage of the recipient or death of the payer or recipient.
- Support may terminate upon cohabitation of the supported spouse, even if he or she is not married to his or her cohabitant.
- Parties may tailor their own support agreements provided they are not unconscionable.
The following factors are generally taken into consideration by judges and commissioners when deciding whether a person is entitled to receive support:
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- Age
- Health
- Education
- Income
- Skills and employability
- Assets or property received or owned
- Alternative sources of income
- Contributions and sacrifices made during marriage
- Children’s ages and special needs
- Length of the marriage
- Reasons for the dissolution of marriage or legal separation (in fault states)
- Marital standard of living or lifestyle
- Cohabitation
This article is not legal or financial advice. You should contact a lawyer, accountant and/or financial professional in your state to discuss the specifics or your case and applicable laws.
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