How to Avoid Alimony

Three Parts:Determining Your State LawsClassifying Need and Ability to PayNegotiating a Settlement

When divorcing spouses are in highly unequal positions, alimony or spousal support becomes an issue. Where the spouses are equally situated financially, there is generally no alimony awarded. Knowing what types of alimony your state recognizes and the things that trigger them can help you structure your divorce and develop strategies the minimize the chance you may have to pay alimony.

Part 1
Determining Your State Laws

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    Consult an attorney. There are a variety of small details that may impact your case in family law. Judges also have a lot of discretion in making decisions. Therefore, you should hire a local attorney if you can. If you cannot afford a full-service attorney, consider consulting one for unbundled services. Unbundled services include:
    • Preparing documents
    • Giving you legal advice
    • Coaching you through the court process
    • Teaching you the law as it applies to your case
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    Read your statutes. Your state’s statutes will tell you how the legislature wrote the laws that the judge is supposed to follow. You want to read the statutes pertaining to domestic relations or spousal support. You can usually find a link to the statutes from the websites of your legislature, your state’s highest court, or the governor’s office. These statutes should tell you:[1]
    • The types of alimony recognized in your state
    • The requirements for each type to be ordered
    • The conditions under which an alimony award can be modified
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    Search associated case law. Case law (law made when judges make written rulings on cases) is used to further define and interpret statutes. Often, case law will be annotated at the bottom of each section. Google Scholar no provides a searchable database of case law for every state. If there is a word or phrase you need further information about, search on it in case law.
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    Consider a pre- or postnuptial agreement. An agreement prior to divorce can determine how assets will be divided and determine any alimony or support. So long as you complied with state law formalities, these agreements will likely be followed at the time of divorce. If a spouse will qualify for public assistance if the agreement is enforced, the agreement will usually be set aside. Common requirements for these agreements include:[2]
    • They must be in writing
    • Both parties must disclose assets
    • Both parties must have opportunity to seek legal advice prior to signing
    • The signatures of neither party can be obtained by coercion
    • They generally are not enforceable regarding child custody or support

Part 2
Classifying Need and Ability to Pay

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    Determine the payor’s ability to pay. Along with need by the recipient, most states require the court to determine that the person to pay alimony has that ability. Some state laws even stipulate that the total of all support payments made by a payor cannot exceed a certain percentage of their income. When determining ability to pay, courts generally consider things such as:[3]
    • Child support to be paid for children of the current relationship
    • Child support to be paid for children of previous relationships
    • Alimony to be paid as a result of the current relationship
    • Alimony to be paid as a result of prior relationships
    • The ability of the payor to earn money (which may be different than the payor’s current earnings)
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    Estimate need for lump-sum alimony. Lump-sum alimony is a one-time payment made from one spouse to the other. The need of the recipient is based on fair compensation for an uneven property settlement, fair compensation for a lesser earning capacity, or other items. Lump-sum alimony generally has some features not common to other forms of alimony, such as:[4]
    • It generally cannot be modified
    • It generally has no tax impact
    • It can often be discharged in bankruptcy
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    Calculate estimated rehabilitative alimony need. Rehabilitative alimony is designed to give the receiving spouse time to become established in the workforce. This includes any education that is necessary prior to entering the workforce. Some of the things that a court will consider when determining the amount of rehabilitative alimony are:[5]
    • The length of time the spouse will need to attend school or other training
    • The cost of the school or training (including books and supplies)
    • The cost of living while attending school or training
    • The other resources available to the rehabilitating spouse, including grants, scholarships, and loans
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    Estimate need for reimbursement alimony. Reimbursement alimony is intended to reimburse one spouse for a contribution made to another spouse during the marriage. In most cases, the contributing spouse must not have had the opportunity to realize the benefit of that contribution. The most common example of this is where one spouse puts another spouse through school (especially graduate schools), and the spouses divorce soon after graduation.[6]
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    Estimate need for permanent alimony. Permanent alimony is no longer very common. It is generally only awarded for a marriage of long duration in which one spouse was primarily the homemaker. Because of this, the nonworking spouse has no marketable skills and the prospects for rehabilitation are slim. Even though it is called permanent alimony, it can be stopped for:[7]
    • The payor losing a job or becoming disabled and no longer being able to pay
    • The receiver becoming remarried
    • The receiver entering a cohabitation relationship with shared living expenses
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    Calculate estimated temporary alimony (pendent lite) need. Alimony pendent lite is support one spouse pays to the other while the divorce is pending. This is to help maintain the standard of living until the court makes permanent orders regarding property settlement and any other support. Some things that are considered in setting alimony pendent lite are:
    • Who is living in the marital home
    • The normal living expenses
    • The incomes of both parties

Part 3
Negotiating a Settlement

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    Consider a trade off. If you and your spouse are divorcing, your spouse may be willing to accept a larger property settlement instead of alimony payments. There may also be other issues that are important to your spouse, but not so important to you. You can offer these items in lieu of alimony. If you and your spouse can agree on the issues, it will save lots of time and money, and courts can be very unpredictable.[8]
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    Participate in mediation. Mediation is a process in which a neutral third person attempts to help parties in a disagreement come to an agreement. If you and your spouse cannot agree on your own, consider using a mediator. The mediator does not consider fault, but only the needs of both parties and tries to put together a solution that meets the needs of both. Most family courts require mediation prior to trial.[9]
    • If mediation is successful, the mediator generally prepared the necessary legal documents
    • If mediation is unsuccessful, the parties can continue to court, if desired.
    • In most (but not all) jurisdictions, mediation is a confidential process. What you say and offer in mediation cannot be used in trial unless it was otherwise discovered outside of mediation.
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    Defend yourself in court. If all else fails and your spouse asks the court to award alimony, you will have to argue your case before a judge. To do that, you will need to know what the qualifications are for the alimony type your spouse requested. Using that information and facts specific to your situation, you will need to present evidence and witnesses that will convince the judge either:[10]
    • Your spouse does not need the alimony requested, or
    • You do not have the ability to pay the alimony requested

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Categories: Divorce