Spousal support, also called alimony, is a sum of money usually paid by one spouse to another spouse for the support and maintenance. The factors considered by the court in awarding spousal support are as follows:
- Past relations and conduct of the parties (fault)
- Length of the marriage
- Ability of the parties to work and their respective incomes
- Source and amount of property awarded to the parties
- Ability of the parties to pay spousal support
- Present situation of the parties
- Needs of the parties
- Health of the parties
- Prior standard of living of the parties and whether either is responsible for the support of others
- Age and educational level of the person claiming spousal support
Generally, judgments of divorce in which spousal support is not granted must either expressly reserve the question of spousal support or rule that neither party is entitled to spousal support.
Regular or periodic spousal support clauses in the judgment of divorce are modifiable at any time. When limitations are placed in the judgment regarding modification, it is questionable whether the court will honor these limitations. Spousal support may be increased, decreased, or cancelled. A modification is based on a showing of a change in circumstances that warrants the modification.
Regular or periodic spousal support is usually taxable to the recipient and is deductible by the payor. The phrase “payment until death” must be part of the spousal support clause in order for it to be considered as taxable spousal support. This type of spousal support is not dischargeable in bankruptcy. Qualifying clauses such as “payable until remarriage” may be included.
Another type of spousal support, referred to as “spousal support in gross,” has all the attributes of a property settlement; nonetheless, it is not taxable to the recipient, not deductible by the payor, and not modifiable. However, it may be subject to being discharged in bankruptcy. This type of spousal support is for an amount certain and has no qualifying clauses such as “payable until remarriage. ” The court will look to the intent of the parties to determine the nature of the spousal support.
There are many tax consequences and restrictions applicable to spousal support and spousal support in gross that should be explained to you by your attorney or your accountant. Since both federal and state tax laws and the interpretation thereof continually change, your attorney cannot guarantee any tax consequences resulting from your divorce proceedings and the judgment of divorce.
Spousal support is usually paid through the office of the Friend of the Court. This enables a party to obtain an accurate record of these payments. Also, it makes it easier to request assistance from the Friend of the Court in the event that payments are not forthcoming or a spouse denies receiving payments.
The enforcement of regular or periodic spousal support payments is usually instituted by an order to show cause. I will explain this procedure upon request. Spousal support in gross is more difficult to enforce, and there are other types of procedures available for enforcement.
With respect to health care coverage, your attorney will explain your options to you upon request, including your right, if applicable, to elect health care under COBRA (a federal law that makes health care insurance portable in some instances).