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Welcome to the Divorganize session on alimony or spousal maintenance. When I've gone through
all these other sessions, I always start by saying that I can't give you legal advice,
because I'm not your lawyer, and I don't necessarily... I can't educate you about the laws in every
specific state where you may live, so this is not intended to be advice. This program
is intended to be an educational program to teach you to issue spot, which means to be
able to see what issues might be relevant in your particular case.
And this is a situation. Alimony and spousal maintenance is one of those things that is
wildly different in different states. I mean, I was really surprised when I started doing
research to find out exactly how alimony works in different states. So you're really gonna
have to pay attention to your specific state laws and statutes about alimony or spousal
maintenance. So um, I'm gonna go ahead and do the overview and we're gonna talk about
the different factors, but there is a very widely divergent way that this is looked at
in different states. And so, it goes from everything from hardly any alimony, to lifetime
alimony.
So in some states it's called alimony, and in other states it's called spousal maintenance.
And this is gonna go one of two ways for you. Either there's no alimony or spousal maintenance
necessary, because you and your husband make basically about the same amount of money or
close enough. Or maybe if you make more money than he does, you're gonna have to pay him
spousal maintenance or alimony. Or conversely, if he makes more money than you do, he might
pay you spousal maintenance or alimony. So for purposes of discussion here, even though
some states call this spousal maintenance, I'm just gonna go ahead and say alimony, because
it's the word that most people are more familiar with.
So let's take a look and see what types of factors are involved in making an alimony
decision in various states.
There are some states where the alimony award is figured out kind of by statute. And what
that means is that it's predetermined by the legislature how much alimony will be awarded.
And in some states, it's a percentage of the income of the higher earning spouse. And sometimes
there's actually a dollar amount, maximum amount, of alimony that you can get. In some
other states, you get alimony only if you've been married a certain number of years. Like,
there's some states that say no alimony, unless you've been married for 10 years. And other
states say, if alimony is awarded, there can't be an end date for alimony, which basically
means it goes on forever. Some states, they give very specific factors that have to be
looked at, and in other states the factors are a little more vague.
So, alimony is different in different states, by the amount of the length of alimony, by
the amount of alimony, by the circumstances under which you qualify for alimony. So, what
I'm gonna tell you is if you are in a situation, well any actually any divorce situation, but
if you're in a situation where there's not pretty much equality between the money that
you make or can make, and what your husband makes or can make, then you really need to
do your research in your state to find out what your divorce rights are, with regard
to alimony. And as part of the divorce process, you need to kind of figure that out before
filing for divorce. Usually it's a good idea to have some idea of how alimony works in
your particular state. So, in the states... so there's two times when alimony becomes
relevant in your divorce situation. One is you file for divorce, and then there's a period
of time between your divorce, and when you have your divorce finalized. That can be months,
or it can be a year or more, depending on your state and legal requirements for the
amount of time of separation that has to happen before you can get a final divorce.
So there's a temporary period, and in most states that's if you come up with your budget,
that looks like you or he is going to need is gonna need financial help, either one of
you, then you can either come to an agreement, about you know, I'm gonna, sometimes one of
you says "Well I'll pay the mortgage, and you pay the car payments", or something along
an agreed financial support, which may or may not be alimony. Or, one of you says here's
how much alimony I need, and the other says OK, I'll pay that for this period of time.
But if you can't agree on that, and some people can't or a lot of people can't obviously,
cause you don't like each other, and you're into fighting about it, sometimes you end
up in a court hearing.
And that's in a lot of states, it's called a "Temporary Orders Hearing", and it's a motion.
And in other states it's called, and I am not exactly sure how to pronounce this, "pendente
lite". And that's spelled p-e-n-d-e-n-t-e l-i-t-e. And that means pending litigation.
So what it basically means is, for this temporary period, there has to be some sort of an order,
so you have this pendante lite order which in other states it's called a temporary order.
So you're going to have this period of time that you have to figure out how the bills
are gonna be paid, and that's your temporary maintenance or alimony. And one thing that
you need to be aware of is that alimony is usually taxable to the person who's receiving
it, and tax deductible to the person who's paying it.
So when you're trying to figure out during this temporary time period, between when you
file for divorce, and when your divorce is finalized, some people say "well, I don't
really want to pay taxes on the money, so maybe the husband or the person who's gonna
make the mortgage payment." And you've got to talk to a CPA, cause I'm not a CPA, I can't
talk to you about tax consequences, cause it's not my specialty area. But what we're
doing is we're issue spotting. So what you don't want to do is enter into an agreement
with your soon to be ex, and then find out that you have to pay taxes on that money and
you didn't factor that in.
On the other hand, if you're the one paying alimony, you would want to talk to a tax adviser,
because, you say "I don't want to pay him any alimony", but you find out it's a tax
deduction to be able to pay alimony, so maybe that's not the worst thing in the world in
your situation, if you do it very, with knowledge, and talking to a financial planner, who's
a CPA.
So if you find yourself having to go into court, and make an argument for temporary
alimony, then what you probably need to do, is come to the judge or the commissioner,
or whoever hears these motions in your jurisdiction, and you'll you can look... you'll have to
look online and find out exactly what's required for a motion in your jurisdiction, or you
hire a lawyer. But, generally speaking, we're talking about issue spotting now, generally
speaking, you'll be required to come into court with proof of what your bills are. So,
for example, if you're saying, you know, you make 2,500 dollars a month, net income, which
is your income after all of your taxes are taken out; so if you're three thousand a month,
you might be asking for $500 worth of alimony. So proof would be like a copy of mortgage
statement, or rent, your lease agreement. It would be copies of your utility bills,
or your... you know, the coupon you get for your car payment, or a copy of how much money
you typically spend at the grocery store, or what your gas is.
And in some jurisdictions where I practice for example, there are very strict rules.
When you come in on a temporary motion hearing, you have to have six months of bank statements,
six months of utility bills, six months of statements from brokerage accounts, cause
the judge or the commissioner wants to see what is your whole financial picture. If you
say "I need $500 a month alimony", from your husband, and say he makes 3000 a month, and
you make 25 hundred a month, and it would be a stretch for him to have to pay that to
you, then the judge looks and sees you guys have $20,000 sitting in the bank, or you're
getting a bonus next month, or there's other aspects of your financial situation, that's
something the judge or the commissioner needs to be able to review the entire situation.
Because the job of the commissioner for this temporary period of time is to try to maintain
the status quo for you financially. So if you're looking for alimony in that temporary
period of time, you're gonna have to prove what your expenses are. You're probably gonna
have to sit down, and go through the bills, and try to figure that out.
So that's the temporary period. But what you're probably more concerned about is — OK after
I'm divorced, now what's going to happen? And again, you might be in the position of
earning more money, and you might be faced with having to make alimony payments, or,
you're in the position where your husband makes more money, and you're going to ask
for alimony payments. So, how does that work?
Well like I said, in various states, there are some states where it's pretty cut and
dry. There's other states where there's very specific state statutes, and case law, that
talks about how alimony is determined in various states.
And then in some states, it's sort of... statute says here's some factors that the court has
to consider when making an alimony award. And that's not to say that you're necessarily
going to court, but if you're going into a settlement, then you're strongest position
in settlement is to say, "look, I'll settle this case, but you need to understand that
if I go to court, here's what I'm going to be entitled to." And that puts you in a really
strong bargaining position. So it's always good to know what a judge would do with a
situation like yours.
So the judge is going to look, and factors are different in different states, but they
look at things like how long have you been married, that's a factor. Some states look
at if it's a short term marriage, you don't get very much alimony, if it's mid-term you
get a little more, if it's long term, you might get a lot more, or for a longer period
of time. They're gonna look at the age of the parties, so for example if you're 35 and
you've got a long work life ahead of you, you're not going to get lifetime alimony,
unless you're in a really unusual situation.
I just finished up a trial where my client was 57 years old, she had been unemployed.
She was a... she had a degree that was so far outdated it was not even functional any
more. She had not worked for over 30 years, because she'd been home raising children,
and her husband was a dentist, and he... we went to court because he said no alimony.
We're still waiting for a decision from the judge on that one, but - um - the judge made
it very clear that she's going to be rewarding alimony to this woman.
Another thing they look at is the educational level of the parties. So for example, if you
have a degree in, say you have a MBA, and say your husband never finished his bachelor's
degree. But in a couple of years, he could get that bachelor's degree finished up. Then
the judge might say, "well you're gonna have to pay for a couple of years, until he gets
back up on his feet". And the flip side is true if you're the one who doesn't have the
good job, and your husband makes a lot of money. Then the judge might be more likely
to say, you need to be, you need to get alimony until you can get into the work force. So
um, that has to do with the education levels of the two parties, which is another one of
the factors.
Another factor is the income of the parties, and that's similar to the education level,
but it... you know, maybe you have no education at all, or maybe your husband has no education,
but he makes, you know, almost a hundred thousand dollars a year, or two hundred thousand dollars
a year, and you can earn 36 as a assistant at a school. In a situation like that, they
don't necessarily look at the education, but they'll look at the incomes and say, this
lower wage earner needs some help going forward.
They'll look at the health of the parties. If one of you has a disability or, you know,
some chronic illness like arthritis, rheumatoid arthritis is a common one we see, or multiple
sclerosis, that limits the ability of someone to earn an income, or some people have mental
health problems, and if they're significant enough the court will take that into consideration
when making an alimony award.
And then in some states they actually have, part of their statute says the lifestyle of
the parties. So if you've been living a certain lifestyle, some states say you're entitled
to continue that lifestyle up into the future, if the parties, if the wage earner can afford
to support the other party sort of in a similar lifestyle. So that usually happens for people
who make a lot of money. Like if some guy's making $300,000 a year, he's gonna have to
support his wife or she's gonna support her husband, in a way that leads to a comfortable
lifestyle, it's not just sort of a subsistence level.