Atlanta Alimony and Support Attorneys
Perhaps no other concept of divorce may generate stronger emotions than alimony.
You may hear your attorney use the terms alimony, spousal support, and maintenance interchangeably because they are all different ways of describing the same legal concept. Although they can be used interchangeably, for the sake of simplicity we will only use the term alimony. The stigma and reputation that alimony is an unfair vestige of a bygone era is woven into our social consciousness. Who pays it? How much? What should you know when you enter into the discussion of alimony? How should you estimate what you should receive? Who decides what you should get, if anything? And lastly, how long should you receive it if you are awarded alimony?
Through the information on this page, we hope you will gain a better understanding of the process for determining alimony and learn how to use that knowledge to your advantage if you are required to pay (or receive) it. This information is the result of more than two decades of practical experience and application. Mr. Kessler has been practicing family law in Atlanta, Georgia since June 1988. After graduating from Brandeis University in Waltham, Massachusetts, and Emory University School of Law, he created a family law firm in downtown Atlanta. Our firm has a team of more than 25 professionals, including lawyers, paralegals, and clerks, making Kessler & Solomiany LLC, one of the largest and most prominent family law firms in the Southeast. Call us at (404) 688-8810.
Types of Alimony
The most common purpose of alimony is to give one spouse, who otherwise could not support themself, the time to become a self-supporting member of society or to provide support for a certain period of time. Becoming a self-supporting member of society requires, among other things: learning (or re-learning) how to be self-sufficient, obtaining an education, entering (or re-entering) the job market, and honing skills necessary for self-support. Of course, these attributes take time to develop, or redevelop, and the courts are well aware of this fact. This is why you will often hear this type of alimony referred to as “rehabilitative.” One spouse may be required to pay a monetary sum for a short period of time to help the other spouse get back on their feet after a divorce. The alternative to rehabilitative or short-term alimony is, of course, long-term or even “lifetime” alimony. Court-ordered lifetime alimony is becoming increasingly rare as more and more women enter the workforce. These awards are fact specific and you should consult with an attorney regarding your case. This is further complicated by the choice of periodic or lump sum alimony options.
Provisions requiring periodic or lump sum alimony look very similar but one major difference between periodic and lump sum alimony is that lump sum alimony is non-modifiable in most states. Periodic alimony is defined as payments that are contingent upon a given fact or where the duration is uncertain. It is important to note that a periodic alimony award can become non-modifiable if agreed upon in the parties’ settlement agreement, but absent the parties’ agreement, the Court cannot make it non-modifiable. Periodic alimony is also the only form of alimony that might be tax deductible to the payer and taxable to the recipient. By contrast, a lump sum alimony award will state the exact amount of payments due and the exact amount of each payment. Furthermore, the provision should state this alimony payment is meant to be lump sum alimony and, therefore, non-modifiable. Do not be fooled by the name—lump sum alimony does not necessarily require payment in one large sum, although nine times out of ten, an award of lump sum alimony is usually a one-time payment. If you do distribute this alimony over a period of time, it is still not subject to modification.
Every state has created its own factors for determining how much alimony one spouse must pay and the duration of the support. Some states even have alimony guidelines much like child support guidelines. Of course, you should consult a local attorney in your jurisdiction for a list of specific factors in your state. Many states have adopted a form of the Uniform Marriage and Divorce Act which states:
“Alimony shall be in amounts and for periods of time the court deems just…after considering all relevant factors including:
- Financial Resources of Both Parties
- Ability of Party Seeking Alimony to Obtain Education/Meaningful Employment
- Standard of Living Established During the Marriage
- Duration of Marriage
- Age and Emotional Condition of Spouse Seeking Alimony
- Ability of Spouse Paying Alimony to Simultaneously Meet the Needs of Both Spouses
- Fault (in most states)
- Uniform Marriage and Divorce Act”
Let’s look at an example: Jonathan and Melissa have been married for 18 years. Jonathan has been earning more than $200,000 a year for the last ten years and Melissa was a secretary earning $30,000 a year until she had her child ten years ago. Since that time, she has been a stay-at-home mother. Based on the factors mentioned above, the court will likely recognize that this is a long-term marriage and that it will take Melissa a few years to get back into the work force. For this reason, Jonathan will likely be ordered to pay alimony for a few years so that Melissa can get back into the work force and because of the duration of the marriage. Many other factors would be relevant, including the other financial resources of the parties and perhaps fault. But the bottom line is that alimony is generally going to be determined on a case by case basis except in a few states where there are actually guidelines to give the judge some direction. However, you should discuss this, as with all issues you have, with a lawyer in your particular jurisdiction.
Frequently Asked Questions
What is alimony?
Alimony is a support payment by one spouse to another which, based upon various factors may be appropriate in a particular case. Alimony is generally not available to a spouse who caused the dissolution of the marriage by their adultery or desertion. Alimony may be for a limited time period or until the spouse receiving alimony dies or remarries, or may be paid in one lump sum. Again, the court will review the Domestic Relations Financial Affidavit (see sample on our web site under “client forms”) when determining the issue of alimony. Factors the court will consider in determining alimony include the length of the marriage; health of each party; assets of each party; and the contributions of each party to homemaking, child raising, and career building of the other party.
Can infidelity affect my right to alimony?
In some states the court will consider infidelity when it is determining whether to grant alimony. In a minority of states, infidelity that causes the divorce is a complete bar to alimony. Stated differently, if you are seeking alimony and your infidelity caused the marriage to dissolve, then you may be barred from receiving alimony. If you cheated on your spouse in the past and then your spouse subsequently forgave your transgression and resumed the relationship with you, that past instance (or instances) of cheating will be less likely to be used against you. The general rule is that the cheating must be the cause of the divorce and if your spouse has forgiven you, he or she cannot turn around and claim that your cheating caused the divorce. Of course, the question of whether your spouse forgave you is dependent on the specific facts of your case.
If your spouse’s infidelity caused the marriage to dissolve that will generally not result in you receiving more alimony. However, judges in some states may consider your spouse’s infidelity when deciding alimony or when it comes time to divide the marital property. Division of property, as you will learn in the next chapter, is the division of your marital estate. This division is at the judge’s discretion and there are many factors he or she may consider when it comes time to divide your marital estate. Consequently, some judges may consider infidelity and/or other transgressions that caused the divorce when he or she is dividing your estate, although some states require an equal division regardless of adultery or other conduct.
Will moving in with my new partner or remarriage affect my alimony award?
In a majority of states a periodic alimony award may be modified if your ex-spouse has a “meretricious relationship” with a third party. A meretricious relationship is a relationship that has the trappings of a marriage without the legal effect. Additionally, most states require that the relationship is continuous and that the receiving ex-spouse and the third party hold themselves out to the public as a couple. Generally, intermittent sexual relations with a third party will not be grounds for modifying your alimony obligation. The point is, if you live with someone but refrain from marriage just to keep getting alimony, the court will often see through such a ruse.
Prior to marriage and/or divorce can my spouse and I contract away our right to alimony in the event we get divorced?
Yes, prior to marriage you and your spouse can contract away your right to spousal support in the event you divorce. This is commonly known as a pre-nuptial agreement. Generally, to be enforceable a prenuptial agreement must be: (1) made with no duress or coercion, (2) made with full financial disclosure from both parties, (3) entered into knowingly by both parties, and (4) must not be “unconscionable.” However, in many states, you may also enter into a contract after you are married, but before divorce. This is commonly known as a post-nuptial agreement. To be enforceable, a post-nuptial agreement must meet the same requirements as a prenuptial agreement. Regardless of when you enter into a prenuptial or postnuptial agreement, most jurisdictions will enforce the contract if the rules are followed. But again, please check with a lawyer in your area, as some states do not allow postnuptial agreements and the rules for prenuptial agreements do vary from state to state.
If you can afford a lawyer then you should absolutely schedule an initial consultation. You need to discuss your circumstances as soon as possible. However, rather than just calling a family friend who happens to be a lawyer or finding someone online, you should contact the attorneys of Kessler & Solomiany LLC. Call us at (404) 688-8810 today.
Alimony Guidelines Podcast and transcript
Show Me the Money: Helping Clients Find and Protect Assets in a Divorce