Alimony,
maintenance or
spousal support is an obligation established by
divorce law in many countries. This obligation is based on the premise that both spouses have an absolute obligation to support each other during their
marriage (or
civil union) unless they are
legally separated. In many instances, the obligation to support may continue after
separation or
divorce.
History
The earliest example of alimony is mentioned in the first recorded code of laws in the world; the
code of Ur-Nammu. In it, a man who divorced his wife was supposed to pay her a mina (sixty silver shekels) .
Historically, alimony arose as a result of the indissoluble nature of marriage in western culture. 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.
Reckoning
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.
Unless the parties agree on the terms of their divorce in a binding written
instrument, the court will make a 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 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.
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 from 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 U.S. 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 sometimes 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). In some states, if someone is unable to pay all of his or her alimony, he or she will be found in
contempt of court and placed in jail.
Factors affecting alimony
Some of the possible factors that bear on the amount and duration of the support are:
Tax consequences of alimony in the United States
According to Section 71 of the U.S.
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 (check/money order)
- The payment is received pursuant to 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 of the recipient
These requirements apply whether the parties enter an agreement that is approved in an order of the Court (contractual alimony) or the Court orders alimony after a contested trial (statutory alimony).
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.
See also
