When meeting someone for the first time, the question arises: “What do you do for a living?” While that question can lead to more small talk, it is certainly not a small-talk question in the context of a divorce. If you are the primary bread-winner as opposed to a stay-at-home parent, it can play a significant role in determining if an ex-spouse is entitled to support. This payment is known as alimony.
Prior to awarding alimony, the court will consider a number of different factors, including the length of the marriage, each parties’ earning capacity, and whether there was fault in the break-down of the marriage (the use of fault in determining an alimony award will not apply in all jurisdictions). These factors are in addition to other circumstances present in the divorce, such as property division and whether there are children from the marriage.
Alimony is neither a guarantee, nor is it applicable to every divorce. If alimony does come into play in your divorce, it’s important to be familiar with the different types of alimony.
Rehabilitative alimony is awarded when one party shows a need for education to obtain gainful employment and can explain to the Court how an award of rehabilitative alimony will result in them obtaining an education and ultimately employment. The most common occurrence of rehabilitative alimony is when one spouse exits the workforce to stay at home to raise the children. The spouse who was the sole or majority wage earner may be ordered to pay rehabilitative alimony as maintenance while the ex-spouse gains the education or experience needed to become employed. This type of alimony can be awarded through a showing of the need for education or experience and a plan for how either would provide gainful employment.
Restitutional (reimbursement) alimony is awarded as repayment for one spouse’s contribution during the marriage to advance the training or education of the other spouse. Often, this type of alimony arises when one spouse already has sufficient employment and the other spouse decides to obtain a professional or graduate degree. Restitutional, or reimbursement, alimony would be paid to the spouse who financially provided for the parties when the other spouse obtained more education or training.
Permanent alimony can be awarded when one spouse can establish a need for support and maintenance (such as food, clothing, housing, and other necessities), and that the other spouse has the means to provide for that support and maintenance. Permanent alimony normally occurs when there is a difference in earning capacity and the spouse with a lower earning capacity needs support and maintenance to maintain their way of life as if the divorce did not occur. Additionally, when providing for an award of permanent alimony the length of the marriage is likely to be of greater importance (i.e. the longer the marriage the greater the likelihood of an award of permanent alimony, assuming other factors are met as well).
While all of this may seem dire if it looks like alimony payments may be coming out of your paycheck, keep in mind the court has the ability to modify an order for alimony should circumstances change. For example, see “Can I End Permanent Alimony (Spousal Support).”
A general understanding of alimony and the role it might play in your divorce is an important matter to address from the beginning. Alimony is one of the biggest consequences that can come from divorce, alongside property division and child custody. Keeping alimony at the forefront of the parties’ minds can also play a significant role in settlement negotiations.