Alimony is money paid by one spouse to the other as financial support while spouses are living separately from one another.
Usually, alimony is a series of payments made while the spouses are living in a bona fide state of separation before divorce (temporary alimony) or after divorce (permanent alimony), but alimony can also be made in a single, lump sum payment. The source of alimony payments is either income earned after separation or divorce or separate property owned by the paying spouse. The court can order alimony to be paid from either source.
You don’t have to wait until your divorce is over to receive alimony. Once a divorce case is filed, either party can ask the judge to order one spouse to pay temporary alimony (which can include paying for expenses connected to the divorce case, like attorneys’ fees).
You don’t even have to file for divorce to agree on a temporary support arrangement. Many couples simply agree on a temporary amount of support which is good for their family while they work towards settlement.
Permanent alimony is what the judge can order to be paid following divorce. Permanent means payable after divorce. How long permanent alimony payments last is another issue to be decided.
Permanent alimony should not be confused with “lifetime” alimony. Lifetime alimony, or alimony for an extended period of time, possibly until the death of the recipient, is uncommon and is usually awarded when a spouse is unable to work due to age, physical disability, or mental illness.
Alimony is not awarded in every divorce. The first 2 questions which must be answered before alimony will be awarded are:
Alimony is not punitive – a person who cannot afford to pay alimony will not be ordered to do so. Likewise, a person who can pay alimony will not be ordered to pay alimony to a person who does not need it.
In Georgia, alimony is often referred to as being rehabilitative or transitional and it is awarded primarily as short-term financial support to help one spouse transition from unemployment or underemployment to full employment. The underlying expectation is that following divorce both spouses will remain or become self-supporting.
There are circumstances in which alimony can serve a different purpose. For example, lifetime alimony to support an older spouse leaving a long-term marriage or a higher amount of alimony for a spouse with a disability.
If divorcing spouses cannot agree on alimony, the spouse asking a judge to award him or her alimony will be expected to present a concrete plan for how the amount of alimony requested will be used. One common situation is when a wife who has been unemployed or underemployed for a number of years will ask the judge to order her husband to pay her alimony. She will need to be prepared to present compelling evidence about how much alimony she needs and how it will enable her to take to make a transition to being self-supporting.
You and your spouse can agree on an amount of financial support which makes sense for your situation, family, and finances. Because Georgia does not have a formula for determining alimony many couples do not know where to start. The good news is that other states and counties do use formulas and those calculations can help you and your spouse discuss what might be fair in your situation. You can begin the process by using the Alimony Estimator to see what alimony would be for you or your spouse under those formulas.
If you cannot agree, then a judge will decide for you. Under Georgia law alimony is not calculated using a formula. Rather the amount of alimony one spouse pays the other is determined by weighing eight factors related to the marriage and the spouses. Each party will want to present evidence favorable to them about as many of these factors as possible. Ultimately, the judge’s decision will be subjective and you will never know why the judge decided what he or she did. In addition, the amount of money spent on legal fees to argue the issue of alimony could be substantial.
The Georgia alimony factors are:
(1) The standard of living established during the marriage
(2) The duration of the marriage
(3) The age and the physical and emotional condition of both parties
(4) The financial resources of each party
(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment
(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party
(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties
(8) Such other relevant factors as the court deems equitable and proper.
Under Georgia law, alimony is modifiable. This means that the amount and/or duration of alimony payments can be changed after a divorce is final. You and your former spouse can agree to adjust your alimony or either spouse can file a petition for modification and ask a judge to make a change.
It is possible to agree that neither party will ever ask the court to increase or decrease alimony thus making alimony non-modifiable. As a compromise between modifiable and non-modifiable alimony, some couples agree not to seek a modification for a set number of years.
Alimony payments are based on real world factors at the time of divorce and if your alimony is modifiable and circumstances change materially for either spouse after divorce, courts can reduce or increase the amount of alimony to better reflect reality. If one spouse does ask the judge to increase or decrease the amount of alimony, they must be able to show that there has been a material change in circumstances which warrants a modification. However, you should not agree to an amount of alimony thinking that a court is going to adjust the amount every time there is a change in one spouse’s circumstances. Alimony modifications are typically limited to significant income changes due to unemployment, disability, or other major financial changes. There are also limits on how often modifications may be requested.
If you can prove that your spouse’s adultery caused your separation then, under Georgia law, your spouse would not be entitled to receive alimony. Specifically, if one spouse can prove by a preponderance of the evidence (convincing the judge that there is more than a 50% chance it’s true) that the spouse seeking alimony committed adultery and that the act of adultery caused the spouses to separate, then the court must deny the adulterous spouse alimony.
Even if one spouse cannot prove that adultery was the cause of separation, the evidence presented at trial about both spouse’s actions toward the other can be taken into account by the judge when deciding whether to award alimony, how much alimony should be paid, and how long alimony payments should last. Also, evidence about the parties behavior can influence how the judge divides marital property and determines custody.
Litigating this issue can be extremely difficult, embarrassing and damaging to one or both spouses and to a family. It can also be very financially lucrative for the attorneys involved.
Many divorces involve adultery or other unkind, frustrating, or cruel behavior, and judges frequently hear evidence of spouses mistreating each other to varying degrees. Parties who “want their day in court” on these issues should understand that a judge likely will not be outraged, upset, or shocked by the evidence presented, and the judge’s decision will likely not vindicate either party.
The contribution of a spouse to raising children and running the marital household is one of the factors in the alimony determination. There is not an automatic connection between the length of alimony and the length of time a spouse has been out of the job market. Likewise, it is impossible to say how much weight a particular judge will give to the fact that both spouses agreed one would sacrifice their future earning potential to focus on the children. Your judge might believe that being the sole breadwinner and the responsibilities that come with that role mean sacrificing time away from the children and that offsets the stay-at-home spouse’s sacrifice.
Depending on the evidence presented at trial by your lawyer and your spouse’s lawyer about how long finding a job might take, how much that job might pay, whether getting a job will require any training or education, you might not have to pay alimony. There is not, however, a direct link between one spouse’s ability to work and the other spouse’s freedom from paying alimony.
If you are ordered to pay alimony and your spouse gets a great job, or a huge raise or wins the lottery, you can go back to court and ask for your alimony obligation to be modified.
In 2018 the tax laws were changed to eliminate the deduction of alimony payments by the paying spouse. This change makes alimony less “beneficial” to the payor and less “useful” to the payee. The payor no longer can think of 30% or 40% of their payment as subsidized by an income tax deduction and the recipient can no longer report alimony as income for purposes of qualifying for a mortgage or other loan after divorce. This loss of tax benefit to the payor spouse has caused more couples to consider an increased allocation of marital property, such as a marital home or retirement or savings accounts, to the unemployed/underemployed spouse instead of periodic alimony payments in the equitable division.
We’ve got you covered. Visit A Modern Divorce by Taylor & Weber LLC for options to help you mediate issues, draft a parenting plan or settlement agreement, file your documents with the court, or simply provide legal advice.