Print Posted by Suzanne Prescott on 09/06/2017

The Ins & Outs of Alimony

The Ins & Outs of Alimony

Alimony, or spousal support, is the financial support that is paid by one spouse to the other in a divorce case. In most cases, the higher earning spouse is the one to make periodic payments to the lower earning spouse. This payment can occur both during and after the divorce, on a temporary or permanent basis.

In Georgia, the award of alimony to a spouse in a divorce is governed by O.C.G.A. 19-6-1 (c). The factors that a Court considers in deciding whether or not to award alimony, the length of time it should be paid, and how much should be paid, include the following:

  • Standard of Living
  • Duration of the Marriage
  • Physical and Emotional Condition of the Parties
  • Financial Resources of Each Party    
  • Time needed to Obtain Employment
  • Contributions of each spouse to the marriage
  • Financial Condition of the Parties


Types of Alimony

Besides the factors above, the type of alimony is also important when a court is deciding how much financial aid should be awarded. Types of alimony include temporary alimony, indirect alimony or permanent alimony.

  • Temporary Alimony: Temporary alimony is also called “pendente lite”, which essentially means “pending.” This type of alimony is usually awarded while the divorce proceedings are underway and is for a specific period of time. It is not guaranteed that someone will receive permanent or further alimony just because they were originally awarded temporary alimony.
  • Indirect Alimony: This is when a spouse pays for direct expenses like a mortgage or a car loan payment. This is a less traditional form of alimony.
  • Permanent Alimony: Permanent alimony continues for an extended period of time. This could be until the death of the receiving party, but the growing trend in the courts of Georgia is to award alimony for a designated duration (a good rule of thumb is 1/3 of the length of the marriage). Permanent alimony is generally awarded when several of the above factors are met and proven. The obligation of the paying spouse ends if the recipient remarries or dies or cohabitates in a meretricious relationship.


Alimony and Cohabitation

In Georgia, the voluntary cohabitation of the former spouse who is receiving alimony is grounds for the modification of alimony payments. In fact, if you can prove cohabitation, alimony payments typically cease altogether, unless the parties specifically contract otherwise in their Settlement Agreement. The basic logic is that you can’t have two sugar daddies!  In other words, the spouse paying alimony should not have to support the spouse receiving it, if that spouse is being supported by another person. Similarly, the spouse paying the alimony should not have to support a stranger. The exact meaning of cohabitation falls into a grey area.  However, Georgia law states that “the word ‘cohabitation’ means dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person.” (emphasis added) OCGA § 19-6-19.

In summary, Georgia courts have predominantly focused on whether the relationship is continuous and open, similar in nature to marriage, and whether proof of sexual relations or shared cohabitation expenses have been offered.


Alimony and Taxes

Alimony payments may be included as income to the recipient for tax purposes and deductible from the income of the payor spouse.  IRS Code Sections 71 and 215 govern the tax implications of alimony. In order for alimony to be taxable to the person who is receiving the alimony, the payee, and deductible by the payor, it must meet the seven requirements of Code Section 71. These requirements are documents, dollars, designation, distance, death, dual, and dependents.

  • Documents - The first requirement, documents, relates to the concept that the payments must be legally categorized as alimony based on the fact that the payments originated under the terms of a divorce or separation agreement. The approved types of divorce or separation instruments include a decree of divorce.
  • Dollars - The second requirement is that the payments be made in cash. Cash payments to third parties qualify so long as those payments are made under a divorce instrument and are for the benefit of the payee spouse.
  • Designation - Third, payments must be designated in a certain way. The payments must be designated as includible as income and allowable as a deduction.
  • Distance - There must be distance between the two former spouses, meaning that the spouses cannot both live in the same household.
  • Death - The payments must end upon the death of the payee spouse.
  • Dual - If the parties are still married and have alimony they would like to address in their respective tax returns, they cannot file a joint tax return. If they filed a joint tax return, the income and deduction would be offset so that there would be no tax consequence.
  • Dependents - Alimony payments are only for the support and maintenance of the payee spouse, so they cannot be fixed as child support.


Alimony and Modification

If you are the party paying alimony, you can seek to modify alimony upon a substantial change in financial circumstances (such as losing your job).  However, alimony can be made non-modifiable, if the parties so agree.  If you are the party receiving alimony, it’s rare that you would be entitled to an increase in your alimony award based upon the paying party earning more income.  However, if you experience a financial hardship or a debilitating unforeseen medical issue, the Court may increase your award.  However, the duration (number of years of the award) can never be modified upwards or downwards.

Remember, alimony terminates upon the recipient spouse’s re-marriage or co-habitation in a meretricious relationship unless the Settlement Agreement specifically states otherwise.  Simply having a boyfriend would not be enough to seek a termination of your support obligation.  You must show that the ex-spouse and her boyfriend are domiciled together.

 

Can I get alimony if it wasn’t awarded in the divorce?

We frequently get asked by folks if they can get alimony “after the fact”. The answer is no.  Once the court finds (or the parties agree) that there shall be no alimony awarded to either spouse, neither spouse can later seek any alimony.

To fully understand your personal alimony risks and rights, be sure to consult with a legal professional who is qualified to answer your questions and give you legal advice.  The best way to stay protected is to stay informed.


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The attorneys at Bivek, Brubaker & Prescott LLC believe that going through a divorce or other family law issue represents a new beginning for their clients.  They recognize that choosing a family law attorney is a daunting task, and they want to make it as easy as possible for you.  For more information, visit them at  http://www.bbplawfirm.com/.

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