Types of Alimony / Spousal Support
Before an ex-spouse can even be eligible for alimony there has to be a valid marriage. If the marriage ended in annulment or was considered void, generally, there is no legal basis for awarding alimony unless state statutes provide otherwise.
Alimony awards can come in a variety of forms:
• Temporary Alimony
• Rehabilitative Alimony
• Permanent Alimony
Additionally, more than one category of award can be awarded in the same divorce action.
Temporary alimony is often awarded during the period the divorce proceeding is pending. This type of award becomes necessary due to the length of time. It could take before the final decree is issued and a permanent alimony award is made.
Generally, rehabilitative alimony is used to support the spouse during a period of retraining or re-education for re-entry into the workforce, thereby enabling the spouse to become self-supporting in not too distant future. Since it provides a temporary fix to help the party regain marketable skills, it can be classified as another form of temporary alimony.
The courts are more compelled to award this type of alimony where the spouse seeking it, has some potential for establishing a viable career.
Permanent alimony becomes effective upon the final dissolution of the marriage. Additionally, it can come in various forms:
• Periodic payments (often monthly)
• Lump sum payments
• Annuity payments
• Trust payments
• In-kind payments (e.g., making direct payment for services)
Despite the seemingly permanent nature of this type of award, it usually does not last forever (i.e., until the recipient’s death). In most jurisdictions there is no prescribed period for alimony payments. For instance, the California statute which deals with the duration of alimony states:
Despite the nomenclature, courts consider various factors before making the decision as to which party, if any, should be entitled to alimony.
FACTORS IN ALIMONY/SPOUSAL SUPPORT
Alimony awards are generally based upon the needs and abilities of each party, using factors such as:
• Age of the parties;
• Health and physical condition of the parties;
• The earning capacity of the parties(e.g., taking into account the supported spouse’s marketable skills vis-à-vis the current job market for those skills);
• Present income of the parties;
• The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party;
• The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living;
• The duration of the marriage;
• The needs of each party based on the standard of living established during the marriage; and
• The jurisdiction of the marriage (in some jurisdictions).
When divorce statutes were fault-based, there were two additional factors courts considered: (1) degree of fault and (2) maintenance of status.
ENFORCEMENT OF ALIMONY AWARDS
An alimony award is essentially a court order, thereby making payment mandatory—based on the dictates of the order. If the payor fails to fulfill those obligations, he or she will be in contempt of court. As such, the court can take the necessary steps to compel the payor to comply with the order. Specifically, courts can choose either to pursue a civil or criminal proceeding against the scofflaw.
A civil proceeding has an underlying purpose of getting the delinquent payor to make the required payments rather than punishing the delinquent payor. Conversely, a criminal proceeding is used to punish the offender, which usually results in the imposition of some jail time. Remedies for nonpayment can include:
• Imprisonment for a prescribed period of time (despite the threat of imprisonment, many jurisdictions are unwilling to throw their debtors in jail)
• Judgment against the non-complying party (also enforceable in other states under the doctrine of full faith and credit)
• Seizure of property such as tax refunds
• Liens on real property
• Wage garnishments
If the reason behind nonpayment is due to an inability to pay, that argument can be advanced in a petition for modification of the award.
THE OBLIGATIONS IN ALIMONY AFTER DIVORCE
Once the order for alimony is directed, the one who pays support must continue to do so until the receiving partner weds again. If there are defaulting payments, such lapses or not delivering on the right date, one faces repercussions. This may include ordering the employer of the husband to deduct the spousal alimony from his monthly salary and make a direct recompense to his wife. One may also face contempt of court.
HOW ALIMONY IS DECIDED
Wife is earning
When the wife earns her own money, the law investigates the financial condition of the husband. If the husband is very prosperous then he is ordered to pay alimony to his ex-wife.
When the wife is non-earning
When the wife is non-earning, she is entitled to be paid alimony, which enables her to live on par with her husband’s financial status. The idea is to equalize the financial position of both spouses.
If the wife remarries
The husband is exonerated from paying his ex-wife alimony if she remarries. However, he will be liable to continue payment for the children.
Husband is jobless because of disability
In circumstances where the husband is sick, disabled or unable to earn a living, the wife pays alimony to her husband.
Duration of the marriage
Usually if the marriage is 10 years of age, the spousal support has to be life-long.
Age of spouse
The court takes into account the age of the spouse to be paid alimony. If he/she is young and has excellent career prospects, there is a possibility of a future job and income to support them. In this instance, the period of maintenance paid is shortened
Permanent Alimony and Maintenance under Section 25 of Hindu Marriage Act, 1955
Section 25 provides for the grant of permanent alimony and maintenance to any of the party to a marriage at the time of passing any decree under the Act or at any time subsequent thereto. The court shall take into account the status of opposite party in fixing the amount for maintenance. The court has been empowered to rescind or modify the order at any subsequent stage if the circumstances so warrant; and if petitioner becomes inchoate or remarries at any subsequent stage the court may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.