Family Law

Divorce Alimony FAQ

Get answers to some of the most common questions about alimony.

Q: Can alimony be reinstated after its termination due to cohabitation or a break up?

  • A: This depends entirely on the laws in your state and your specific court order regarding alimony. In most states, once alimony has been terminated it can never be reinstated. Some court orders now include alimony termination provisions that call for the end of alimony payments when the supported spouse begins cohabitation (living) with a new romantic partner. While the exact definition of "cohabitation" varies from state to state, it generally means people living together and sharing living expenses. Other states require a conjugal relationship, similar to marriage.

    Although the recipient spouse's cohabitation generally puts an end to spousal support, some courts have ruled that alimony may be reinstated when the supported spouse's cohabitation ends and that spouse becomes "single" again. Most courts, however, say that once the obligation to pay alimony is terminated it can never be reinstated.

Q: Can I revise how my divorce settlement agreement characterizes my payments for tax purposes?

  • A: This depends on the laws in your area.

    Generally, alimony is tax deductible for the spouse paying support and it's taxable income to the spouse receiving it. However, a court might modify the alimony order to change other types of payments so they're also considered "alimony" for tax purposes.

    For example, depending on many factors, mortgage and other house-related payments you make on the home your ex-spouse lives in may or may not be considered "alimony," even though your divorce settlement agreement requires you to make the payments. You may ask the court to reclassify the payments so that they're tax deductible for you and taxable income to your spouse, but you will need your ex-spouse to agree to the change, or there must be a provision in your settlement agreement (or a state law) that allows the court to modify the agreement.

Q: Can my ex-wife collect back alimony when she's done nothing about my non-payment for several years?

  • A: There is a definite possibility she can still collect. Once a court orders you to pay spousal support, your ex-wife has a legal right to collect that alimony and you're obligated to pay it.

    You may, however, have a defense called "laches" (pronounced "latches"). It may be used against someone who has failed to assert a right to alimony for an unreasonable and unexplained period of time. The reasoning is that it would be unfair or "prejudicial" to you, the payor, to excuse your ex-wife's failure to seek payments from you after a long lapse of time.

    This defense may not be available in every state and will depend on the facts of each case. In many states, courts won't let you use laches as defense to back-alimony simply because you knew you were legally obligated to make the payments, and you knew you weren't paying them.

Q: Does my ex-husband have to continue to pay alimony if I'm now living with a new romantic partner?

  • A: It depends on the alimony laws in your state and the exact wording of your divorce settlement agreement or decree.

    Your state's laws and/or your alimony order may call for the automatic termination of alimony once you began cohabiting. The recipient spouse's cohabitation is a common basis for cutting off spousal support.

    However, cohabitation is defined by state law, which varies quite a bit. Some states only require that you and your partner live together. Other states might require that the new partner actually support you financially, while still other states require that you and your partner have a conjugal relationship, similar to marriage—meaning you're more than just roommates.

Q: My ex-husband is now making quite a bit more money than he did when we divorced. Can I ask the court to increase my alimony?

  • A: This depends entirely on the laws in your state and your specific spousal support order.

    Alimony is usually awarded based on events that happened during the marriage and the spouse's incomes, expenses, and earning capacities at the time of the divorce. For example, where one spouse stayed home to raise the couple's children and sacrificed career prospects, there may be a good argument for long-term alimony payments and even future increases. In many states, judges may consider one spouse's sacrifices during the marriage and how they may have contributed to the other spouse's career, professional success, and long-term earning capacity. In states that follow this theory, courts may have the power to change or modify the alimony order and increase support payments if the higher-earning spouse receives a significant raise.

    It's also possible your spousal support order "looks to the future" and includes language that allows for an increase if your ex's income goes up (as it was expected to do) at some point after the divorce.

    You should consult a local attorney to figure this out. More importantly, if you're currently divorcing, ask your attorney about any proposed alimony agreement or order and potential for a future increase.

Q: Should the court consider my financial circumstances in determining a temporary support award?

  • A: When it comes to temporary alimony, courts in some states look at both the payor's ability to pay as well as the payee's financial need. A court isn't supposed to penalize or reward a spouse when setting a temporary amount for spousal support.

    That doesn't mean the support order can't be a tremendous burden, however. If you can't afford the order, it may be that you simply have too many bills, and you need to change your spending habits or life style.

    It's also possible that the order is simply too large. If you gross $2000 a month, and the support order is for $1200 a month, it's entirely possible that something was done incorrectly. You should probably talk to an attorney about possibly appealing the alimony order or asking the court to modify it.

Q: Will a court consider my wife's savings in determining her alimony obligation to me?

  • A: Judges usually consider many factors in making alimony decisions. The payor spouse's assets are normally one of the factors, so the judge probably will consider your wife's savings accounts and other assets. And, if the savings account contains marital property (income or savings that were acquired by either or both of you during the marriage) it's likely you'll receive a portion of the savings when the court divides your assets.
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