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Family law

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Annulment · Divorce · Alimony
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Alimony, maintenance or spousal support is an obligation established by law in many countries that is based on the premise that both spouses have an absolute obligation to support each other during the marriage (or civil union) unless they are legally separated. In some instances, the obligation to support may continue after separation.

Historically, alimony arose as a result of the indissoluble nature of marriage. Because divorce was rare, husband and wife remained married after their physical separation and the husband's obligation to support his wife continued. Traditionally women have focused their effort in many societies to the core health and maintenance of offspring, husband, family unit as well as the general social fabric and health of their local community and not the pursuit of support in the form of financial resources and career. With the growing view that men and women should be treated equally, the law recognized that both husbands and wives owed each other a similar duty of support. Accordingly, courts now may order either the husband or wife to pay alimony. In practice it is more often the husband that is required to pay as he is most often seen both culturally, actually and financially to be the primary provider. The amount of alimony granted is most often based on the financial success of the paying spouse and lifestyle he or she is able to provide as well as future prospects of resource success rather than an amount to provide a basic or median standard of living.

1 Origins of alimony
2 How alimony is granted
3 Alimony and child support compared
4 Factors affecting alimony
5 Tax consequences of alimony in the United States
6 Male alimony
7 Criticism
8 See also

Origins of alimony

The origins of alimony (a legal term that dates to the mid-17th century¹) can be traced back to the ecclesiastical courts in England ². Alimony laws vary by state and may not be applied in every divorce case. Alimony is also available to men and there are legal precedents that have paved the way for men to seek and receive alimony from their ex-wives.

The first reported legal case of alimony in Nevada involved a wife, in a divorce action in the late 19th century, who petitioned the court for alimony pendente lite. This award at that time was considered money for attorney's fees ³. One of these precedents was determined in Orr v Orr,⁴ where the Supreme Court invalidated Alabama's statutes by which husbands, but not wives, were required to pay alimony upon divorce. This statute was considered a violation of the Equal Protection Clause of the 14th Amendment.

How alimony is granted

Once dissolution proceedings commence, either party may seek interim or pendente lite support during the course of the litigation.

Where a divorce or dissolution of marriage (civil union) is granted, either party may ask for post-marital alimony. It is not an absolute right, but may be granted, the amount and terms varying with the circumstances. If one party is already receiving support at the time of the divorce, the previous order is not automatically continued (although this can be requested), as the arguments for support during and after the marriage can be different.

Unless the parties agree on the terms of their divorce in a binding written instrument, the court will make a determination based on the legal argument and the testimony submitted by both parties. This can be modified at any future date based on a change of circumstances by either party on proper notice to the other party and application to the court. The courts are generally reluctant to modify an existing agreement unless the reasons are compelling. In some jurisdictions the court always has jurisdiction to grant maintenance should one of the former spouses become a public charge.

Alimony and child support compared

Alimony is not child support, which is another ongoing financial obligation often established in divorce. Child support is where one parent is required to contribute to the support of his or her children through the agency of the child's other parent or guardian.

Alimony is treated very differently from child support in the United States with respect to taxation. Alimony is treated as income to the receiving spouse, and deducted from the income of the paying spouse. Child support is not a payment that affects U.S. taxes as it is viewed as a payment that a parent is making for the support of their own offspring.

If a party fails to pay alimony, there are not generally any special legal options available to the party that is owed money.^{citation needed} In many jurisdictions, people whose child support obligations go into arrears can have licenses seized; in a few states they can even be imprisoned. Someone trying to recover back alimony can sometimes only use the collection procedures that are available to all other creditors (for example, (s)he could report the back alimony to a collection agency). In some states, if someone is unable to pay all of his or her alimony, he or she will be found in contempt of court and placed in jail.

Factors affecting alimony

Some of the possible factors that bear on the amount and duration of the support are:

Length of the marriage: Generally alimony lasts for a term or period, that will be longer if the marriage lasted longer. A marriage of over 10 years is often a candidate for permanent alimony.
Time separated while still married: In some U.S. states, separation is a triggering event, recognized as the end of the term of the marriage. Other U.S. states (such as New Jersey) do not recognize separation or legal separation. In a state not recognizing separation, a 2-year marriage followed by an 8-year separation will generally be treated like a 10-year marriage.
Age of the parties at the time of the divorce: Generally more youthful spouses are considered to be more able to 'get on' with their lives, and therefore thought to require shorter periods of support.
Relative income of the parties: In U.S. states that recognize a right of the spouses to live 'according to the means they have become accustomed', alimony attempts to adjust the incomes of the spouses so that they are able to approximate, as best possible, their prior lifestyle.
Future financial prospects of the parties: A spouse who is going to realize significant income in the future is likely to have to pay higher alimony than one who is not.
Health of the parties: Poor health goes towards need, and potentially an inability to support oneself. The courts do not want to leave one party indigent.
Fault in marital breakdown: In U.S. states where fault is recognized, fault can significantly affect alimony, increasing, reducing or even nullifying it. Many U.S. states are 'no-fault' states, where one does not have to show fault to get divorced. No-fault divorce spares the spouses the acrimony of the 'fault' processes, and closes the eyes of the court to any and all improper spousal behavior.
Gender of the person: In India an able bodied male would not receive alimony where in an able bodied female still does

Tax consequences of alimony in the United States

According to Section 71 of the U.S. Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income. To qualify as alimony the payments must meet the following five conditions:

The payment is a cash payment
The payment is received by a “divorce or separation instrument”
The instrument does not specify that the payments are not for alimony
The payer and payee are not members of the same household when the payments are made
There is no liability to make the payments for any period after the death or remarriage of the recipient

These requirements apply whether the parties enter an agreement that is approved in an order of the Court (contractual alimony) or the Court orders alimony after a contested trial (statutory alimony). For an example, see Post-Divorce Alimony in Texas.

A divorce or separation instrument is defined as a decree of divorce or separate maintenance or a written instrument incident to such a decree, a written separation agreement, or a decree requiring a spouse to make payments for the support or maintenance of the other spouse.

Child support must be included in the payer’s gross income and can be excluded from the recipient’s gross income. Child support payments are payments that are allocated to the support of the minor children of the pair. If the amount of the alimony payments would be reduced in the event of the age, death, or marriage of the child, this contingent amount would be considered child support.

Section 215 of the Internal Revenue Code allows the alimony payer to take a tax deduction for any alimony or separate maintenance paid during the year. The payer’s deduction is tied to the recipient’s inclusion of alimony.

Together Sections 71 and 215 act as an income splitting device. Because of this, collaborative divorce processes such as mediation may allow special tax-saving alimony planning opportunities. See, for example, Mediation's Power in Alimony Cases.

Male alimony

According to an article in the Wall Street Journal, the percentage of male alimony recipients rose from 2.4% to 3.6% in a five year period and is expected to increase as more and more marriages feature a female primary earner. The article states that in 2005, wives earned more than their husbands in 33% of all families, up from 28.2% a decade earlier.⁵

Criticism

Alimony is sometimes perceived as encouraging women to divorce, and being in violation of men's rights^{citation needed}.