Divorce has the potential for financially devastating outcomes for a dependent spouse. Spousal support, also known as alimony, can help ease a dependent spouses transition out of the marriage. These are some of the factors the court considers in awarding alimony.
Historically, marriage made a husband duty-bound to support his wife, and that duty did not end even if the marriage did. However, at the time, alimony was tied to the idea of “fault." If the divorce was due to the woman’s fault (adultery, abandonment, etc.), then she did not receive alimony.
Today, all states have adopted no-fault divorce laws. As a result, spousal support awards are now based on other facts about the marriage.
The US Supreme Court ruled in the 1970s that men are also entitled to receive alimony; so, today, either spouse may ask for support during a legal separation or after a divorce is finalized. Temporary support granted during the separation does not automatically continue after the divorce, and length of alimony payments can vary greatly. Some states have strict rules, such as upper limits on amount and duration, while others are more lenient and still allow lifetime alimony.
When considering alimony, courts may take into account the following factors:
Ability to pay: This is the courts biggest consideration in setting an alimony award, and ability is calculated based on net income.
Length of marriage: The longer you've been married, the more you've theoretically put into the marriage, and the greater the likelihood of the court awarding alimony.
Children: Children's welfare is of great importance to the court, which may decide it's best for them that the custodial parent not work full-time, especially if they are young and daycare options are limited. More than half of states consider whether the person requesting alimony is the custodial parent.
Standard of living during marriage: Most states try to ensure that both spouses can maintain a similar standard of living after divorce, if possible.
Ability to earn: Courts look at what both spouses currently earn as well as their future earnings potential. If one of you expects to earn significantly more in the future, this could affect the size and/or duration of alimony.
Ability to self-support: Courts consider the petitioning spouse's marketable skills and ability to work outside the home. If you can work but did not do so during the marriage, you may receive temporary alimony to ease the transition to self-support. Being unwilling to work is not the same as being unable, and the courts may deny or reduce alimony if you refuse to find work.
Emotional/Educational Support: If one spouse supported the other through schooling or other difficulties, the courts may take this into consideration and award alimony as a kind of compensation for this previous support.
Because state laws differ greatly, consulting an attorney is a good idea so that your interests are adequately protected and you end up with a fair alimony payment amount.