Alimony and Spousal Support

In Georgia, there are 13 grounds for divorce. 12 are considered “fault” grounds, while one, “irretrievably broken”, is considered a “no fault” ground. No matter what grounds you have filed or have been filed against you, alimony is probably a part of your divorce negotiations if there is a disparity of income between you and your spouse.

What is alimony?

Alimony, or spousal support, is the financial support that is paid by one spouse to the other in a divorce case. In most cases, the higher earning spouse is the one to make periodic payments to the lower-earning spouse. This payment can occur both during and after the divorce, on a temporary or permanent basis.

The award of alimony to a spouse in a divorce is governed by O.C.G.A. 19-6-1 (c). The factors that a Court considers in deciding whether or not to award alimony, the length of time it should be paid, and how much should be paid include the following:

• Standard of Living
  • A court may consider the social standing and luxuries of life which the spouse had been enjoying and would have continued to enjoy had there been no separation (See Bodrey v. Bodrey)

• Duration of the Marriage
  • In the typical case, the longer the length of the marriage, the stronger the case is for alimony. There is no black and white rule for how many months someone should get alimony, and each alimony award depends on the specific facts of the case. Marriages that are less than 5 years are less likely to get alimony than marriages lasting longer than 10 years.

• Physical and Emotional Condition of the Parties
  • The age and physical and emotional condition of the parties is a factor the Court looks at in determining whether or not to award alimony. An older, financially dependent spouse with bad health is more likely to get alimony than a younger, healthier spouse. The need of a spouse is a factor the court considers and the healthier an individual is, the less their need for financial support may be.

• Financial Resources of Each Party
  • All assets of the parties play a factor in determining whether or not spousal support should be awarded including income, debts, retirement benefits, and military benefits. Extra-marital resources such as the potential to receive large inheritance or support from family members can play a factor in a Court’s decision whether or not to award alimony and how much to award.

• Time needed to Obtain Employment
  • The court looks at the time necessary for either party to acquire sufficient education or training to enable him or her to find appropriate employment. Stay at home moms with no college degree may need longer than someone with a college degree and some work experience. Someone that has been out of the workforce for a long period of time may need to obtain updated certifications and degrees in order to make them more competitive in the workforce.

• Contributions of each spouse to the marriage
  • The court looks at the contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education and career building of the other party. Factors include non-monetary contributions including the time that a spouse dedicated to the above activities.

• Financial Condition of the Parties
  • The condition of the parties, including the separate state, earning capacity, and fixed liabilities of the parties is something the Court looks at when deciding alimony. The court will consider the financial position of each party in a post-divorce world. Generally, the larger the separate estate that a spouse has, the less his or her need for alimony may be. Future income potential is also something the Court will consider when deciding alimony.

• All Other Relevant Factors
  • The alimony statute has a “catch-all” provision that allows the Court to consider anything else that is relevant when deciding alimony. The more evidence you can present to the Court about the above factor the better chance you will have of proving your case.

Other factors can be considered if a court deems them as proper and equitable.

In Georgia, adultery is also taken into consideration when it comes to alimony discussions. By Georgia law, adultery is defined as one spouse having sexual relations with another person who is not their spouse, while married. If adultery can be proven (through witness accounts, photos, phone records, videos, etc.), the spouse who has been unfaithful can potentially be barred from receiving any alimony.

Types of Alimony

Besides the factors above, the type of alimony is also important when a court is deciding how much financial aid should be awarded. Types of alimony include temporary alimony, indirect alimony or permanent alimony.

Temporary Alimony: Temporary alimony is also called “pendente lite”, which essentially means “pending”. This type of alimony is usually awarded while the divorce proceedings are underway and is for a specific period of time. It is not guaranteed that someone will receive permanent or further alimony just because they were originally awarded temporary alimony.

Indirect Alimony: This is when a spouse pays for direct expenses like a mortgage or a car loan payment. This is a less traditional form of alimony.

Permanent Alimony: Permanent alimony continues for an extended period of time. This could be until the death of the receiving party. Permanent alimony is generally awarded when several of the above factors are met and proven. The obligation of the paying spouse ends if the recipient remarries or dies.

Modifying or Terminating Alimony

In some cases, it is possible to have alimony modified or terminated. This can be done by filing a motion asking for either action. Altering the alimony typically happens when the receiving spouse starts earning more than the paying spouse or the receiving spouse’s condition has worsened. Alimony can also be lowered when the paying spouse has had a chance of financial circumstances lowering his income.

Tax Implications of Alimony

Alimony is typically tax deductible to the payor and taxable to the recipient. Lump Sum Alimony can be treated as non-taxable to the recipient and non-tax deductible by the payor. The language must be carefully drafted in your Order or Agreement to make sure the alimony has the appropriate tax implications that are intended by the parties.

The Bottom Line

Anytime finances come into play, things get tricky. We’re sorry that you are going through a difficult situation, but the attorneys at Bivek Brubaker & Prescott are here to make your divorce proceedings go as smoothly as possible. We believe that a divorce represents a new beginning and we are here to answer any questions for you as you create your new journey. Call us today for your free consultation!