While divorce may terminate the marital relationship, it does not necessarily end the couple’s financial ties. If one party is substantially dependent on the income of the other spouse then that party may be a “dependent spouse” and the other party will be the “supporting spouse.” The supporting spouse will pay alimony to the dependent spouse. Alimony refers to monies paid by one spouse for the benefit of the other spouse and the amount and duration is usually the main issue. You will often hear the terms post separation support and/or alimony. Post separation support is “interim” alimony that is used to allow the dependent spouse to subsist during the divorce process but is essentially a monthly payment like alimony.
As with the other issues surrounding a divorce or separation there are two ways alimony and/or post separation support can be determined and resolved. First, the parties may come to an agreement in a separation agreement whereby the amount and duration of the payments are mutually agreed. This is the less costly, quickest, and less stressful of the two alternatives as the parties are able to control the outcome. If the parties are unable to come to a mutual agreement, the court system would be the mechanism for having alimony and/or post separation support determined. One of the parties would file a complaint for alimony and/or post separation support and the judge would make the ruling based on the facts before him/her. Filing a lawsuit is usually the more costly, more stressful, and time consuming option, but in some cases the parties are left with no alternatives; however, it is in the family’s best interest to come to an agreement outside of court if possible.
If the case proceeds to trial, the court will first make a determination as to whether one spouse is a dependent spouse and whether the other spouse is a supporting spouse. If the court determines that there is in fact such a financially dependent relationship, then the issue shifts to the amount and duration of the alimony and/or post separation support award. With post separation support the court usually looks at just the financial needs of one party and the ability of the other party to pay. It is not until there is a hearing on the issue of permanent alimony when other factors will be considered by the court. The factors a court may consider in making an award of permanent alimony include:
- Marital misconduct (ie an affair)
- Age and health of the parties
- Duration of the marriage
- Contribution of one spouse to the career of the other
- Earning potential of the parties
- Parties standard of living during the marriage
- Education of the parties
- Needs of the parties
- Assets and liabilities of the parties
- Contribution of one spouse as a homemaker
- Property of the parties
It is important that early in the divorce/separation process you begin keeping track of your financial information and begin compiling documents that your attorney may ask for. The financial affidavit is the main document that the court will look at in making the determination of the amount of alimony and can be used as a guide if the parties are working toward a separation agreement. Your attorney can give you guidance in making sure you fill out the document correctly.
If you are currently involved in a divorce/separation and finances are going to be an issue, there are laws to protect your rights whether you are the dependent or supporting spouse. Please contact our office today for legal help in your separation, divorce or alimony matters. Williams Family Law will use proven legal strategies, strong evidence and aggressive negotiating to ensure that you present the strongest case. We can be reached at (919)773-1440 or via email.
