Alimony: What Do I Need to Know Before Divorce?

Alimony: What Do I Need to Know Before Divorce?

Learn about how alimony works and what to expect before filing for divorce.

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.

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.

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.

To learn more about Alimony Laws in your state, visit Alimony Laws by State.

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:

Alimony Payer

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.

Alimony Recipient

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.

To learn more about alimony, see the Alimony section on Nolo network website dedicated to Divorce and Family Law topics). Nolo’s Essential Guide to Divorce, by Emily Doskow (Nolo) is another great resource.

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