Family Law

Make Sure Your Attorney Files a Request for Alimony/Spousal Support With the Divorce Petition

By Joseph Pandolfi, Retired Judge
Should you request alimony when you file for divorce? Find out below.

The topic of alimony (spousal support) is frequently one of the most contentious issues in a divorce. And although many states have begun looking at alimony through a different lens, it's still a fact of life in most divorce cases. Your particular financial situation may entitle you to alimony. But being eligible for it doesn't mean much unless you take one crucial step—you have to request it.

Current Trends in Alimony Law

With the continuing increase in two-income households, the theory of alimony is rapidly evolving. Many state legislatures are putting the brakes on "permanent" (lifetime) alimony. This type of alimony is most common in two situations. The first is where the spouse seeking support suffers from a permanent disability that has diminished the ability to earn income, and the second is in marriages of long duration. It's in that second scenario where change is most evident and that has to do with the definition of the term "long duration." Where the phrase once referred to a marriage of 10 years or more, today it's more likely to be limited to unions of at least 20 years.

Additionally, state laws now contain more variations of alimony than before. For example, "rehabilitative" alimony is meant to assist spouses in getting back into the work force, so they can become self-supporting. There's also "reimbursement" alimony, usually a means of paying back a spouse for money expended to put the other spouse through school. And "limited-duration" alimony consists of support for a specific—usually short-term—period of time.

What If You Didn't Request Alimony in Your Divorce Petition?

Unlike child support, which a parent can't legally waive when filing for divorce, a spouse can voluntarily surrender any right to alimony. That sometimes happens, but the vast majority of divorce litigants want whatever type of alimony they're eligible for. However, the court has no way of knowing that you're seeking alimony if you don't specifically request it. If you never ask for it, you may never get it.

As a practical matter, if you're represented by an attorney, it's unlikely that this would happen. At some point, the lawyer would probably raise the issue of alimony. But not requesting it when you file the original petition could still have negative consequences. For example, if you later decide that you want alimony, the court could order your attorney to revise (amend) the petition to include an alimony application. This means more paperwork, which translates into more legal fees.

Another downside to not requesting alimony early on is that it could delay—or even prevent—your receiving temporary spousal support (known as "pendente lite" alimony). If you're not the primary income producer in the marriage, the odds are you'll need supplemental income to help pay your bills while the divorce progresses. You could be entitled to this from the very beginning of the divorce, but if you don't request it until some point down the road, that late request could cause you to lose money, because a judge normally has no obligation to award temporary alimony retroactive to the date the divorce petition was filed.

The Court Controls Alimony Decisions

It's important to note that your entitlement to alimony—whether you get it, when you get it, and the amount—is almost always left to a judge's discretion, subject to state-imposed guidelines the judge must consider. So it's conceivable that judges might permit a request for retroactive alimony if they feel the circumstances warrant it. For example, in one New Jersey case, the court permitted a wife to receive retroactive temporary alimony because her mental illness had compromised her ability to make rational decisions when the case began, thus excusing her failure to request alimony in the divorce petition.

The point is, however, there's really no reason for spouses to put themselves in the position of having to try to convince judges to award retroactive alimony. Just a little forethought—that is, having your attorney request alimony in the divorce petition—could save you a lot of anxiety and put support money at your disposal for a longer period of time. So do it upfront to be on the safe side. If at some point you decide you don't want or need alimony, you're under no obligation to pursue it.

If you have questions about requesting alimony when you file for divorce, speak with a local family law attorney.

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