Alimony, also called spousal support or spousal maintenance, is payment from one spouse to another during or after divorce. Unlike child support, which follows formulas in most states, alimony determinations remain largely discretionary, varying enormously based on the facts of each case and the predispositions of individual judges.
Types of Alimony
Temporary alimony, or pendente lite support, is paid during the divorce proceedings. It maintains the status quo while the case is pending. Temporary awards do not bind the court on permanent alimony.
Rehabilitative alimony supports a spouse while they gain education or training to become self-supporting. The award has a defined purpose and timeline. It assumes the recipient will eventually become financially independent.
Durational alimony provides support for a specific period, often tied to the length of the marriage. It is appropriate when permanent support is not warranted but the recipient needs time to adjust to the financial consequences of divorce.
Permanent alimony continues indefinitely until the death of either party, the remarriage of the recipient, or modification for changed circumstances. Courts increasingly disfavor permanent alimony except after long marriages where one spouse sacrificed career for family.
Lump sum alimony is a fixed amount paid in one payment or installments. Unlike periodic alimony, it is not modifiable and survives the recipient’s remarriage or cohabitation.
Factors Courts Consider
Most states do not use formulas. Instead, courts consider enumerated factors and exercise discretion. Common factors include the length of the marriage, the standard of living during the marriage, the financial resources of each party, the earning capacity of each party, contributions to the marriage including homemaking, and the needs of each party.
Length of marriage is often the most important factor. Short marriages rarely result in significant alimony. Long marriages create expectations of ongoing support. The line between short and long varies by state, but ten years is often significant.
Standard of living during the marriage establishes the baseline. Courts attempt to allow both parties to maintain something close to the marital standard, though this is often impossible when one household becomes two.
Earning capacity matters more than current earnings. A spouse who is voluntarily underemployed may have income imputed based on what they could earn. A spouse who sacrificed career development for the marriage may have diminished earning capacity.
Marital fault affects alimony in some states. Adultery, abuse, or financial misconduct may increase or decrease awards depending on the jurisdiction. Other states have eliminated fault as a factor.
Tax Treatment
Before 2019, alimony was deductible by the payer and taxable to the recipient. This treatment created planning opportunities and made alimony more affordable for payers in high tax brackets.
The Tax Cuts and Jobs Act eliminated the deduction for divorces finalized after December 31, 2018. Alimony is now neither deductible by the payer nor taxable to the recipient. The change reduced the total support pool available because payers no longer receive tax benefits.
Divorces finalized before 2019 remain under the old rules unless the parties modify their agreement and specifically adopt the new treatment. Pre-2019 agreements that are modified may or may not switch to new rules depending on the modification terms.
The tax change shifted negotiating dynamics. Under old rules, shifting income through alimony from a high-bracket payer to a low-bracket recipient created tax savings to share. That incentive no longer exists.
Modification
Alimony orders are generally modifiable upon showing a material change in circumstances. Losing a job, serious illness, significant income changes, or the recipient’s improved financial situation can justify modification.
The burden falls on the party seeking modification to prove the changed circumstances. Courts require the change to be substantial, involuntary, and permanent or long-lasting. Temporary setbacks do not justify modification.
Retirement as a basis for modification depends on the reasonableness of the retirement and the circumstances of the case. Retiring at normal retirement age is generally reasonable. Early retirement to avoid alimony obligations is not.
Cohabitation by the recipient may reduce or terminate alimony depending on state law. Some states require showing that cohabitation has reduced the recipient’s need. Others terminate alimony automatically upon cohabitation.
Non-modifiable alimony can be negotiated. Parties can agree that alimony will not be subject to modification regardless of changed circumstances. Courts generally enforce such agreements.
Enforcement
Alimony orders are enforceable through contempt proceedings. A payer who fails to pay as ordered can be held in contempt, fined, and in extreme cases jailed. The threat of contempt provides significant leverage.
Income withholding orders direct employers to deduct alimony from wages, similar to child support withholding. Withholding is not automatic for alimony in all states but can be ordered upon request.
Judgment liens attach to the payer’s real property for unpaid amounts. The recipient can record the judgment and foreclose if necessary, though this remedy is rarely practical.
Alimony is not dischargeable in bankruptcy. Unlike most unsecured debts, domestic support obligations survive bankruptcy and must be paid.
Arrearage calculations can become complex when payments are irregular or partial. Interest on unpaid amounts accrues in some jurisdictions. Keeping careful records of payments is essential for both parties.
Negotiating Alimony
Property division and alimony interact in settlement negotiations. A larger property award may justify lower alimony. Trading alimony for property can provide certainty and finality.
Present value calculations convert future alimony streams to lump sums for comparison. A spouse offered a choice between ongoing alimony and a lump sum needs to understand the present value comparison, adjusted for risk of non-payment and the non-modifiability of lump sums.
Life insurance securing alimony obligations protects against the payer’s death. The recipient should be the owner and beneficiary to prevent the payer from canceling coverage. Coverage should decline as the remaining obligation declines.
Alimony buyouts, where the payer makes a lump sum payment to terminate the obligation, can benefit both parties. The payer gains certainty and finality. The recipient gains security and avoids collection risk.
For Service Members
Military divorce alimony calculations involve unique income components and division rules that differ from civilian divorces.
BAH and BAS are included in income for alimony calculations in most jurisdictions. These allowances significantly increase a service member’s total compensation above base pay. Courts that ignore allowances understate actual income.
Military pension division under USFSPA is separate from alimony, but the two interact. A spouse entitled to a share of retired pay may receive less alimony because the pension share provides income. Courts vary on how to account for this interaction.
The 10/10 rule affects direct payment from DFAS but does not affect the right to pension division or alimony. A spouse married fewer than ten years during ten years of service may still receive alimony and may still receive a pension share, just not through direct DFAS payment.
SBP survivor benefit designation interacts with alimony obligations. A court may order SBP coverage to secure alimony payments. The cost of SBP affects the service member’s net retirement income.
Deployment and PCS moves create enforcement complications. A service member overseas may be difficult to reach for contempt proceedings. SCRA protections may delay enforcement actions.
Modification based on military-specific changes raises distinctive issues. Involuntary separation, retirement, PCS to a lower cost-of-living area, or deployment allowances can all constitute changed circumstances.
A military attorney understands how military compensation is properly characterized, how USFSPA pension division interacts with alimony, and how military-specific circumstances affect modification and enforcement.
Disclaimer
This article is provided for general informational and educational purposes only. Nothing in this article constitutes legal advice, and no attorney-client relationship is formed by reading this content.
Alimony law varies dramatically by state, and outcomes depend heavily on the specific facts of each case and judicial discretion. The information presented here may not reflect the law of any particular jurisdiction or apply to any specific situation.
Do not rely on this article to make legal decisions. Alimony determinations have lasting financial consequences that require individualized analysis by a qualified professional.
If you are facing a divorce involving potential alimony issues, consult with a qualified family law attorney licensed in your jurisdiction who can evaluate your specific situation and provide tailored guidance.
The authors, publishers, and distributors of this content expressly disclaim any liability for actions taken or not taken based on this information. Reading this article does not create an attorney-client relationship with any person or entity.
For service members and military spouses facing divorce, the interaction of military compensation, USFSPA, and alimony requires counsel familiar with both family law and military-specific issues.