Article was published in the May 2023 issue of Lawyer Monthly.
A Guide to Alimony Disputes
In the US, the award of alimony can often be one of the more contentious outcomes of a divorce, and as such is of keen interest to family law practitioners. In this article, we hear from experienced family law attorney Thomas Stahl as he takes a closer look at alimony, the common factors involved in alimony-related disputes and how such difficulties can be averted.
While each state’s law varies, the following is based on Maryland law.
Historically, alimony, also known as spousal support, was meant to compensate spouses after a divorce – mostly women – who gave up their careers during their marriage to raise children. Following changes to the law in the 1970s and early1980s, alimony could be awarded to either spouse regardless of gender and became designed to make the economically dependent spouse in a divorce self-supporting. It was not meant to equalise the parties’ incomes.
When the terms of the parties’ divorce are determined by a court, an award of alimony is separate from an award of child support. When the parties resolve the issues of their divorce by agreement and enter into a marital settlement agreement, they usually have more flexibility to set the terms of financial support between the spouses. During the course of the parties’ divorce, the court can order pendente lite or interim alimony paid by one spouse to the other. Such an award only lasts until the court issues a final judgment of absolute divorce. To make such an award, the court need only consider the recipient’s need for such alimony and the paying party’s financial ability to pay alimony.
At the divorce trial, the court can award either rehabilitative alimony or indefinite alimony. Unlike child support, which is determined by a mathematical calculation, an alimony award is determined by a judge using a series of statutory factors such as the length of the parties’ marriage, the parties’ respective ages, health, education, the standard of living the parties enjoyed during their marriage, the financial needs and resources of the parties, the ability of the party seeking alimony to becoming wholly or partially self-supporting, and the time necessary for that party to gain sufficient education or training to enable that party to find suitable employment, among others.
It is important to remember that among the factors that the court considers is whether the person being asked to pay alimony can afford it. Even if a party is entitled to receive alimony, if the other party cannot afford to pay it and all other financial obligations, a court will not award alimony.
An award of rehabilitative alimony usually comprises a set dollar amount for a specific period of time. This award is intended to make the recipient self-supporting, such as going back to school to obtain further education or certification or for the time required to advance in a particular job. In the event that, after a review of the statutory factors, the court determines that the parties’ standards of living would still remain unconsciously disparate or so different from one another that the result would be unfair, it can make an award of indefinite alimony. An award of indefinite alimony usually based on the recipient party’s advanced age, poor health, and/or their education or work experience or lack thereof.
For child support purposes, alimony is considered as income to the recipient spouse and is usually added to the recipient spouse’s income and deducted from the paying spouse’s income, which can affect the calculation of a party’s child support obligation. It does not have the same impact on a party’s income tax obligation. Prior to the changes in federal tax law in 2017, alimony had federal tax benefits for the spouse paying alimony. Now, for divorces after 1 January 2019, no such benefit exists.
One of the main issues that pertains to alimony is its future modification and termination. Alimony awards made by a court are generally modifiable as to the amount or duration of the award. Marital settlement agreements made by the parties need to make sure to include specific language that makes the alimony award either modifiable or non-modifiable by a court as the parties wish. Failure to include language making the agreement terms non-modifiable by a court may likely have unintended consequences. Likewise, alimony awards usually terminate upon the re-marriage of the recipient spouse or the death of either party.
The statute governing the termination of alimony awards does not include a provision terminating alimony upon the recipient spouse cohabiting with another individual. However, many settlement agreements may include additional language that an alimony obligation would terminate upon the cohabitation of the recipient spouse with another individual. In such cases, it is important for such language to be specific as to what is meant by the term ‘cohabitation’ and whether this cohabitation just involves the recipient spouse living with an unrelated individual or if that unrelated individual needs to be a romantic partner or is contributing to the recipient spouse’s expenses.
While they are not as common, courts will enforce a properly drafted prenuptial agreement. Although a prenuptial agreement cannot address child custody or child support, it can address alimony or the waiver of the parties to a right to pursue alimony in a divorce. Like marital settlement agreements, prenuptial agreements must carefully include terms as to whether the right to receive alimony is modifiable or non-modifiable by a court at a later time and the precise terms as to the termination of a right to receive alimony.
About Thomas Stahl
Thomas Stahl is Lead Attorney at the Law Offices of Thomas Stahl. His practice focuses on providing reliable and effective guidance to Maryland and DC individuals and families when contemplating divorce. Thomas’s ongoing dedication and commitment to his clients has been recognised by the Maryland Super Lawyers, American
Institute of Family Law Attorneys, Best Lawyers and Lawyers of Distinction, and he currently serves as Co-Chair on the Rules of Practice Committee in the Maryland State Bar Association.
About the Firm
The Law Offices of Thomas Stahl are a Maryland and Washington, DC-based family law and estate planning practice. The firm’s seasoned attorneys provide full-service representation in matters related to divorce, child custody, guardianship and wills and estate planning.