This past week I went to divorce court in another Circuit. A young man hired me after he received notice of a default judgment. A default judgment is what happens if you do not show up for court. The other side wins and wins big. This gentleman had never been notified of the court date. He had not been served divorce papers. The default divorce gave him supervised visitation with his child. The visitation could only occur at the mother’s discretion. He was also ordered to pay child support and alimony both of which exceeded his income. Child support is set by law in Alabama using a specific formula. However, if you are not in court to challenge the numbers you lose. Unlike child support, there is no formula to determine the amount of alimony.
An ex-spouse may receive alimony from the spouse who has the ability to pay. Alimony is given to balance the economic status for both parties as it existed during the marriage. Alimony in gross is a lump sum payment. Alimony in gross is similar to a division of property. It can’t be modified after 30 days from the final divorce decree being entered. Also remarriage of the receiving party does not necessarily stop the payments. The lump sum payment may be nontaxable.
Periodic alimony payments are made over time. They differ from alimony in gross. The amount can be modified if there is a showing of a material change in circumstances for either party after the divorce (Such as the paying ex-spouse losing the ability to pay.) Periodic alimony stops when the receiving ex-spouse remarries or cohabitates with a member of the opposite sex. It also stops upon death of either party. Periodic alimony is a tax deduction for the paying spouse and income for the receiving spouse. Periodic alimony is payments made for a determined amount of time.
Sometimes an ex is granted rehabilitative alimony for a short period of time such as two to five years. It is designed to help a spouse go through school or to transition back into the job market.
If the judge decides to give alimony there are several things to consider. The judge must determine if there is a need for one to receive the money and also if the other has the ability to pay. The length of the marriage is an important factor. The judge also looks at the ages and health of each party. The judge also considers the conduct of the parties during the marriage. Sometimes alimony is awarded to the faithful spouse as the divorce has been brought on because of cheating.
Periodic alimony is often subject to termination if the former spouse is living openly or cohabiting with a member of the opposite sex. This requires proof. If the former spouse merely has a roommate of the opposite sex who pays rent and there is no evidence of sexual activity between the two, proof of cohabitation probably does not exist.
If the paying party files bankruptcy, alimony payments must still be made. Oh, what happened to my client? Well, among other things; he no longer has a duty to pay spousal support.
