Alimony

alimony, maintenance or spousal support is an obligation established by law that is based on the premise that both spouses have an absolute obligation to support each other during the marriage (or civil union) unless they are legally separated, though in some instances the obligation to support may continue after separation. Once dissolution proceedings commence either party may seek interim or pendente lite support during the course of the litigation.

Where a divorce or dissolution of marriage (civil union) is granted, either party may ask for post-marital alimony. It is not an absolute right, but may be granted, the amount and terms varying with the circumstances. If one party is already receiving support at the time of the divorce, the previous order is not automatically continued (although this can be requested), as the arguments for support during and after the marriage can be different.

Historically, alimony arose as a result of the indissoluable nature of marriage. Because divorce was rare, husband and wife remained married after their physical separation and the husband's obligation to support his wife continued. With the growing view that men and women should be treated equally the law recognized that both husbands and wives owed each other a similar duty of support. Accordingly, courts now may order either the husband or wife to pay alimony.

Some of the possible factors that bear on the amount and duration of the support are:

• length of the marriage
• time separated while still married
• age of the parties at the time of the divorce
• relative income of the parties
• future financial prospects of the parties
• health of the parties
• fault in marital breakdown

Unless the parties agree on the terms of their divorce in a binding written instrument, the court will make a fair determination based on the legal argument and the testimony submitted by both parties. This can be modified at any future date based on a change of circumstances by either party on proper notice to the other party and application to the court. The courts are generally reluctant to modify an existing agreement to unless the reasons are compelling. In some jurisdictions the court always has jurisdiction to grant maintenance should one of the former spouses become a public charge.

Alimony VS. child support

Alimony is not child support, which is another ongoing financial obligation often established in divorce. Child support is where one parent is required to contribute to the support of his or her children through the agency of the child's other parent or guardian.

Alimony is treated very differently to child support in the United States with respect to taxation. Alimony is treated as income to the receiving spouse, and deducted from the income of the paying spouse. Child support is not a payment that affects US taxes as it is viewed as a payment that a parent is making for the support of their own offspring.

If a party fails to pay alimony, there are not generally any special legal options available to the party that is owed money. In many jurisdictions, people whose child support obligations go into arrears can have licenses seized, in a few states they can even be imprisoned. Someone trying to recover back alimony can only use the collection procedures that are available to all other creditors (for example, (s)he could report the back alimony to a collection agency).

Taxes

According to Section 71 of the US Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income. To qualify as alimony the payments must meet the following five conditions:

• The payment is a cash payment
• The payment is received by a “divorce or separation instrument”
• The instrument does not specify that the payments are not for alimony
• The payer and payee are not members of the same household when the payments are made
• There is no liability to make the payments for any period after the death or remarriage of the recipient

A divorce or separation instrument is defined as a decree of divorce or separate maintenance or a written instrument incident to such a decree, a written separation agreement, or a decree requiring a spouse to make payments for the support or maintenance of the other spouse.

Child support must be included in the payer’s gross income and can be excluded from the recipient’s gross income. Child support payments are payments that are allocated to the support of the minor children of the pair. If the amount of the alimony payments would be reduced in the event of the age, death, or marriage of the child, this contingent amount would be considered child support.

Section 215 of the Internal Revenue Code allows the alimony payer to take a tax deduction for any alimony or separate maintenance paid during the year. The payer’s deduction is tied to the recipient’s inclusion of alimony.

Together Sections 71 and 215 act as an income-splitting device. Because of this, collaborative divorce processes such as mediation may allow special tax-saving alimony planning opportunities.