Tom McCutcheon – Attorney at Law
Q: I am going through a divorce after 12 years of marriage and my soon to be ex-wife wants alimony. Do courts still award alimony?
David
Florence, Alabama
A: The bar says lawyers can’t claim to be a specialist in a particular area of the law but the reality is that lawyers tend to concentrate their practice in a specific area. In my opinion, matrimonial lawyers are specialists. These lawyers handle both pre-nuptial agreements before marriage and how a marriage is resolved whether through agreement or trial.
The short answer is yes. Courts still award alimony. If you are in a divorce, hire the best matrimonial (divorce) attorney you can afford. There is no replacement for a good divorce lawyer in a divorce.
In marriages lasting longer than 10 years, retirement benefits are subject to division by the court. Alimony is based on the current ability to pay and is payable from the current earnings of the paying spouse. Often alimony is awarded to equalized the income between two parties after a marriage of sufficient length. Economic circumstances probably drive more awards of alimony than misconduct although to the parties in a divorce all they can see is the other party’s misconduct.
I think we see less alimony awarded in cases where the child support burden is heavy. If you have children by this marriage there may not be a whole lot left over the pay alimony with.
The courts have the ability to award three different types of alimony. Alimony in gross is payable to equalize a property division and it is a set amount for a certain amount of time. A court can award rehabilitative alimony which provides a sum of money payable each month so that a spouse can finish a degree or otherwise rehabilitate themselves to a better economic position in hopes of becoming self supporting. This type of alimony can be a set amount that diminishes each month until the time period for rehabilitation is over. The judge decides how long that is, six months, three years, whatever and that is up to the judge. Probably alimony in gross and rehabilitative alimony are awarded more often than periodic alimony, but periodic alimony is what we normally think of as alimony.
Periodic alimony is paid current earnings until the spouse receiving alimony dies, remarries or cohabitates (lives) with a member of the opposite sex. Periodic alimony has traditionally been tax deductible by the paying spouse and counted as income for the receiving spouse. By way of comparison, child support is paid from bet income which means you need to earn $1.38 to pay a $1.00. Alimony is paid from gross income and deducted from your gross so it really only costs $0.70 or so cents on the dollar because the taxes are paid by the person who receives it.
Buckle up and drive safely.
McCutcheon & Hamner, P.C.
2210 Helton Drive
Florence, Alabama 35630
Telephone: 256-764-0112
Facsimile: 256-349-2529
