30-3-10.5 – Payments of support, maintenance, and alimony.
• All monthly payments of support, maintenance, or alimony provided for in the order or decree shall be due on the first day of each month for purposes of Section 78B-12-112, child support services pursuant to Title 62A, Chapter 11, Part 3, Public Support of Child, income withholding services pursuant to Title 62A, Chapter 11, Part 4, Income Withholding in IV-D Cases, and other income withholding procedures pursuant to Title 62A, Chapter 11, Part 5, Income Withholding in Non IV-D Cases.
• For purposes of child support services and income withholding pursuant to Title 62A, Chapter 11, Part 3 and Part 4, child support is not considered past due until the first day of the following month.
• For purposes other than those specified in Subsections (1) and (2), support shall be payable 1/2 by the 5th day of each month and 1/2 by the 20th day of that month, unless the order or decree provides for a different time for payment.
If you’re facing a divorce, you’ll have to face reality: Alimony payments—also known in some states as spousal support or maintenance—are alive and well in the American divorce system. And if you earn substantially more money than a spouse to whom you have been married for several years, there is a good chance you will be ordered to pay some alimony. On the other hand, alimony generally isn’t awarded for short marriages or where you and your spouse earn close to the same amount.
Alimony (also called aliment, maintenance, spousal support and spouse maintenance) is a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. The obligation arises from the divorce law or family law of each country. Child support is considered a payment that a parent is making for the support of their offspring, and the parent who pays it pays the taxes. However, alimony is treated as taxable income, in most countries, to the receiving spouse, and, in most cases, deducted from the gross income of the paying spouse (the United States IRS does not allow for child support to be deducted from adjusted gross income). In the U.S. state law establishes requirements regarding alimony (and child support) payments, recovery and penalties. A spouse trying to recover back alimony sometimes may use only the collection procedures that are available to all other creditors, such as reporting the amount due to a collection agency. One who allows his or her alimony obligations to go into arrears, where there is an ability to pay, may be found in contempt of court and be sent to jail. Alimony obligations are not discharged as a result of the obligee filing bankruptcy. Ex-spouses who allow child-support obligations to go into arrears may have certain licenses seized, be found in contempt of court, and/or be sent to jail. Like alimony, child-support obligations are not discharged as a result of the obligee filing bankruptcy.
If alimony is ordered, you will generally have to pay a specified amount each month until:
• a date set by a judge several years in the future
• your former spouse remarries
• your children no longer need a full-time parent at home
• a judge determines that after a reasonable period of time, your spouse has not made a sufficient effort to become at least partially self-supporting
• some other significant event—such as retirement—occurs, convincing a judge to modify the amount paid, or
• one of you dies.
As with most issues in your divorce, you and your spouse can agree to the amount and length of time alimony will be paid. But if you can’t agree, a court will set the terms for you. Unfortunately, having a court make the decision means there will be a trial, and that can cost you a lot of time and money.
Types of Alimony
In general, there are four types of alimony:
• Temporary alimony: Support ordered when the parties are separated prior to divorce. Also called alimony pendente lite, which is Latin, meaning, pending the suit.
• Rehabilitative alimony: Support given to a lesser-earning spouse for a period of time necessary to acquire work outside the home and become self-sufficient.
• Permanent alimony: Support paid to the lesser-earning spouse until the death of the payor, the death of the recipient, or the remarriage of the recipient.
• Reimbursement alimony: Support given as a reimbursement for expenses incurred by a spouse during the marriage (such as educational expenses).
Some of the possible factors that bear on the amount and duration of the support are:
• Length of the marriage or civil union: Generally, alimony lasts for a term or period. However, it will last longer if the marriage or civil union lasted longer. A marriage or civil union 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 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 to which 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 are disinclined 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. In Georgia, however, a person who has an affair that causes the divorce is not entitled to alimony.
Prenuptial agreements are recognized in all fifty states, and every jurisdiction allows parties to agree to spousal support and alimony terms in a premarital or postnuptial agreement, if their marital agreement is prepared in accordance with state and federal law requirements. Divorce courts retain the discretion to refuse to enforce prenuptial agreement terms restricting a party’s right to seek alimony if that party would have to seek public assistance as a result of the alimony waiver, or if the restriction on the right to seek alimony is unconscionable or unfair when the divorce occurs. Lack of financial disclosure prior to signing a prenuptial agreement or a post-nuptial agreement by the party against whom alimony is sought may also cause a court to invalidate a waiver of alimony provision. Prenuptial Agreements with valid alimony waivers or restrictions entered into in one state should be fully enforceable by the courts of another state in the event of a divorce, unless the terms of the prenuptial agreement are in material violation of the foreign jurisdiction’s laws. Instead of a complete waiver of the right to seek alimony, prenuptial agreements and post-nuptial agreements can also contain terms where the parties agree to a set amount of guaranteed alimony for the lower wage earner at the time of divorce, or a cap/limit on the amount of alimony either party can seek in the event of a divorce.
In the United States, family laws and precedents as they relate to divorce, community property and alimony vary based on state law. Also, with new family models, working couples, working wives, stay-at-home dads, etc., there are situations where some parties to a divorce question whether traditional economic allocations made in a divorce are fair and equitable to the facts of their individual case. Some groups have proposed various forms of legislation to reform alimony parameters (i.e. amounts and term). Alimony terms are among the most frequent issues causing litigation in family law cases. Eighty percent of divorce cases involve a request for modification of alimony.
The Different Types of Alimony, Spousal Support, and Spousal Maintenance
Alimony, spousal support or spousal maintenance is all terms used to describe one thing–money one spouse may be ordered to pay to the other after a divorce.
Alimony, Spousal Support, Spousal Maintenance
Alimony is money paid by one spouse to the other either during the divorce process or after. Who receives alimony depends on who earned the most money during the marriage and the roles the spouses played. Once referred to exclusively as alimony, it is now more commonly called Spousal Maintenance or Spousal Support. It is awarded by a court order to maintain the standard of living that both spouses became used to during the marriage.
Permanent alimony or spousal support will be paid to the recipient until the death of the one paying is the remarriage of the recipient. In some situations, remarriage does not stop alimony. If the marriage was long-term or the spouse has a disability that keeps him/her from being able to work the courts have and will reward lifetime alimony that will continue whether the recipient cohabitates of marries again. The downside is that lump sum alimony is taxable so be sure you know the tax consequences before agreeing to a lump sum payment of alimony.
Temporary alimony will last for a specific period of time. If the divorce causes a financial hardship on a spouse temporary alimony will be awarded until that spouse can recover financially. Your state’s divorce laws and normal judicial practices for the area you divorce in will determine how long temporary alimony will last.
Rehabilitative alimony is awarded in cases where a spouse needs assistance with job training or college expenses so they may eventually return to the job force after the divorce. It is common for wives who have been stay at home moms and have not worked in years. Rehabilitative alimony enables a dependent spouse to take classes or special job training that will help them become financially independent.
All states have laws for determining whether alimony/spousal support/maintenance will be paid. That being said, you should also take into consideration the fact that judges have the right to use judicial discretion when decided such issues. The following factors are usually considered when deciding alimony:
• Marriage duration.
• The contribution a spouse makes as a homemaker.
• Potentially earning ability of both spouses.
• The age, physical, mental and emotional being of each spouse.
• Whether or not the custodial parent will earn less due to his/her duty to parent the child/children.
Those factors plus the judicial discretion of the judge play a role in whether a spouse pays alimony and how much. Since the judge has a certain amount of legal leeway it is best to settle alimony issues while negotiating your divorce settlement. That takes control away from the judge and leaves it where it belongs with you and your spouse.
If you expect to pay alimony
The fact you have to pay alimony to your ex-spouse doesn’t amount to a finding that you are a bad person. Consider it part of the cost of entering a marriage that you probably thought would last until death parted you, but—for reasons you didn’t anticipate—didn’t. Alimony has been the law for more than 100 years, and while it is ordered somewhat less frequently these days, there is no sign that courts are going to stop making alimony orders for good.
If you expect to receive alimony – The question of whether you qualify for alimony is usually resolved by looking at your capacity to earn—which is not necessarily what you are earning at the time you go to court—how much your spouse earns, and your standard of living during the marriage. You might also be required to make some changes in your life and work. For example, if you have a part-time job that doesn’t pay well, you may be required to attempt to find full-time employment in a better-paid field. Experts called “vocational evaluators” are sometimes hired to report to the court on the job prospects for a spouse who hasn’t been fully employed for a while. The evaluator will administer vocational tests and then shop your credentials with potential employers in order to estimate how much income you could earn.
Taxes and Alimony Records
For now, alimony is tax-deductible for the paying spouse and constitutes taxable income for the supported spouse. This is one of many reasons that it’s important to keep adequate records if you’re paying or receiving alimony. Note that under the 2017 Republican Tax Bill, beginning January 1, 2019, individuals paying alimony will no longer be able to deduct their payments for tax purposes, and supported spouses won’t have to include alimony in their gross income. Until 2019, this point cannot be over-emphasized. Frequently after a divorce, the spouses dispute, or the IRS challenges, the amounts that were actually paid or received. Without adequate documentation, the payer may lose the alimony tax deduction or be ordered to pay back support if the other spouse makes a claim in court.
Here are the records each party to the divorce should keep:
The person paying alimony should keep:
• a list showing each payment (date, check number, and address to which the check was sent)
• the originals of checks used for payments (keep in a safe place, such as a safe deposit box) — be sure to note on each check the month for which the support is being paid, and
• if you pay in cash, receipts for each payment, signed by the recipient.
Be sure to keep these records for at least three years from the date you file the tax return deducting the payments. Some lawyers and tax advisers say you should never throw away these types of records.
The spouse receiving support should make a list that shows each payment received. Include the following information:
• date payment was received
• amount received
• check number or other identifying information (for example, the number of the money order)
• account number on which any check is written
• name of bank on which check is drawn or money order issued
• a photocopy of the check or money order, and
• a copy of any signed receipt you give for cash payments.
If your spouse refuses to pay
Finally, if you secure an alimony order but your spouse refuses to make the required payments, take immediate legal action to enforce the order through a contempt proceeding or an earnings assignment order. Orders to pay monthly alimony have the same force as any other court order and, if handled properly, can be enforced with the very real possibility of obtaining regular payments. If necessary, a court may jail a reluctant payor to show that it means business.
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