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Alimony can be one of the most difficult, contentious issues in a Family Court case. If you are prosecuting or defending an alimony claim, you will need the assistance of experienced legal counsel, without question. The potential ramifications of losing an alimony case can be substantial and long-lasting.
Alimony (or spousal support, as such payments are known before a divorce is finalized) are very case-specific, dependent upon a multitude of factors, and are notoriously difficult to predict in the early stages of a matter. A first analysis of an alimony case, based on information provided to counsel at an initial consultation or subsequent meetings, is usually limited to "guess-timates" based on the length of the marriage, relative earnings or earning capacities of the parties, relative financial needs of the parties, and issues of marital fault. Evidence regarding these factors will be submitted to the Court for determination of temporary spousal support at an initial hearing.
A more comprehensive alimony analysis will evolve during the pendency of the case. Depending on circumstances, you and your attorney will need to decide if you should pursue rehabilitative alimony (payments for a period of time intended generally to boost one party's earning capacity to assist in becoming self-supporting, usually additional schooling or training); reimbursement alimony (perhaps in circumstances where one party made financial sacrifices to assist the other in boosting their own earning capacity); or permanent, periodic alimony, in which one spouse provides the other with a monthly revenue stream until either party's death or the remarriage of the supported spouse.
In making an alimony determination, a Family Court will consider the following factors:
(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;
(2) the physical and emotional condition of each spouse;
(3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential;
(4) the employment history and earning potential of each spouse;
(5) the standard of living established during the marriage;
(6) the current and reasonably anticipated earnings of both spouses;
(7) the current and reasonably anticipated expenses and needs of both spouses;
(8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
(9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;
(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
(11) the tax consequences to each party as a result of the particular form of support awarded;
(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and
(13) such other factors the court considers relevant.
Modifying alimony can be a particularly difficult, but not impossible task.
An award of alimony may always be modified upon a showing by either party that circumstances have changed substantially since alimony was established. Typical circumstances that may qualify as "substantial changes" include, but are not limited to, involuntary and unexpected losses of employment, unforeseen and sustained improvement in the earnings of either party, and protracted illness or disability.
Alimony is always terminable upon the remarriage of the party receiving alimony (unless, in rare circumstances, the parties agree otherwise) or upon the death of either party.
Alimony may also be terminated if the payor can prove that the payee resides with a romantic companion for a period of ninety days or more.
Alimony issues can be particularly difficult to navigate, are often very "high stakes," and will almost always require the assistance of an experienced attorney.
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