Negotiating Alimony

Rice Law attorneys assist spouses seeking divorce negotiate fair and equitable Separation Agreements, which include spousal support (post separation support and permanent alimony) settlements.

However, if spousal support cannot be agreed upon, our attorneys are also prepared to go to court and present clear, rationale arguments to gain an appropriate amount of alimony for our clients.

Common Questions

• What is alimony?
• How is alimony determined?
• How does alimony differ from child support?
• Are there different types of alimony?
• What if I am no longer able to pay alimony?

What is alimony?

Alimony is maintenance or spousal support, which is legally based on the reasoning that both spouses have an absolute obligation to support each other during the marriage. Either husband or wife may request post-separation support (PSS) and/or post-marital alimony, and the court may order either to pay alimony.

The amount of alimony to be paid/received and its terms vary and are based on the couple's circumstances. The amount of alimony paid before and after divorce can also differ.

How is alimony determined?

Alimony can be determined and agreed upon by the spouses when working on the terms of the divorce. The details relating to alimony (e.g., who pays, how much, for how long) can be included in the written agreement prepared by your attorney. However, if an agreement cannot be reached by the parties, the court can make a fair determination based on legal argument and testimony from both parties.

The general rule of court is to make the dependent spouse the alimony recipient.

Typical considerations of the court when determining alimony include:

• Age of both spouses
• Assets, liabilities, and debts
• Behavioral factors (e.g., abandonment, reckless spending, excessive use of alcohol or drugs, cruel treatment, willful failure to provide food and shelter, indignities, illicit sexual behavior)
• Contribution of a spouse as a homemaker
• Duration of the marriage
• Income – both actual and capacity to earn, dividends, and benefits (e.g., medical, insurance, retirement, social security)
• Education of the parties
• How serving as any children's custodian will impact earning power (i.e., earning power, expenses, financial obligations in regard to custody of minor-aged children)
• Marital misconduct such as adultery or illicit sexual behavior up to the time of separation
• Physical, mental, and emotional health of both spouses
• Property brought to the marriage
• Standard of living established during the marriage
• Relative needs of the spouses
• Tax implications of the alimony reward (federal, state, and local taxes)
• Time and cost to contribute to the education or training for the dependent spouse to meet reasonable economic needs
• Time separated while still married
• Any other factors deemed relevant by the court

How does alimony differ from child support?

Child support is a required contribution to support their offspring. Child support doesn't affect the taxes of the payor or recipient.

Alimony is maintenance or spousal support. Alimony is treated as income to the recipient and is deducted from the income of the payer and must be reported as income by the recipient. For more information on the tax implications of alimony and/or post separation support, contact a tax attorney.

Are there different types of alimony?

There are four general categories of alimony agreements, which can be combined:

Rehabilitative Alimony – Generally awarded when the recipient is younger, or able to eventually enter or return to the work force and become financially self-supporting. This type of alimony agreement may include paying for education to enable the recipient to become self-supporting. It is the most commonly awarded type of alimony.

Permanent Alimony – Paid until either the death of the payor or the remarriage of the recipient. Generally permanent agreements include clauses that state alimony ends if the:

• Parties resume marital relations
• Recipient remarries
• Recipient cohabits with another adult in a sexual relationship
• Either party dies
• Stated expiration date is reached, if one was included in the agreement

Temporary Alimony – Payments are made for a specific period of time, typically one to two years. This type of alimony agreement may be awarded when one person may need financial assistance to get re-established.

Note: Rehabilitative, permanent, and temporary alimony is paid periodically (e.g., weekly or monthly).

Lump Sum – One lump payment of alimony instead of periodic payments. You may want to consult with your tax attorney and/or Certified Public Accountant regarding the tax consequences prior to signing a lump sum alimony agreement.

Pendente Lite – Alimony awarded prior to the divorce is called pendente lite alimony. It is taxable income to the recipient and tax deductible to the payor. North Carolina renamed Pendite Lite Alimony; it is now called "Post-Separation Support".

What if I am no longer able to pay alimony?

If your circumstances have changed and you aren't able to pay the amount of alimony ordered by the court or designated in a written legal document, contact an attorney. Court-ordered alimony requires application to the court for consideration. Unless the reasons are compelling, the courts can be hesitant to modify the existing agreement.