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Andrews, Bongar, Starkey & Clagett: Waldorf, Maryland Attorneys

Alimony: What You Need To Know

Anyone going through a divorce or a separation will have a great deal of uncertainty about their financial future. A divorce is never easy on any level. Financial concerns are just one of many problems to face now. However, money is a necessity to pay the bills and keep a roof over your head. So it is right to make good plans for your financial future if you are going through a divorce or separation. Know your options and be informed.

You may be talking to friends and hearing their own personal divorce stories. Then, someone says the word alimony. That word may be a very scary word depending on your current income and ability to support yourself without your spouse's income. If you make the lion's share of the household income, you may be scared of that word. If you do not, then you may think you need it to survive. Either way, it is important to know the facts about alimony and divorce before you can make real plans for the future.

Knowledge is Power. This article will explain what alimony really is (and isn't), and the likelihood of having alimony as an issue in your divorce or separation. Please understand that this is a complicated topic and consulting an attorney can help. At Andrews, Bongar, Starkey & Clagett, we offer a reasonably priced consultation so that you can meet with an attorney and get real answers about your particular divorce case. Each case is unique, and the specific facts of each case make all the difference. Call us today to make an appointment.

WHAT IS ALIMONY?

Alimony can happen during or after a divorce. Alimony is when one spouse pays the other spouse in order to help the second spouse become self-supporting. In Maryland, alimony is not favored in most divorce cases. The court generally wants each party to live on their own income – if not now, then at some point in the future. When alimony is ordered, the divorce court favors awarding temporary alimony so the spouse with lower income can "rehabilitate" themselves. That means there will be a time period when alimony is paid so the spouse can get back to making a higher income and becoming self supporting. Of course, the devil is in the details, and you should keep reading to find out what those details are.

Self-supporting means the person is able to get a job that pays their bills and allows them to live without assistance to survive. The two spouses must be able to survive without a large financial difference between them that could be considered unfair. So if you and your spouse both have jobs that pay about the same amount, alimony is not likely to be considered. However, if you make twice the income of your spouse, or if your spouse does not work while you make a substantial income, alimony could be an issue in your divorce case.

Before any divorce court will award alimony a specific request has to be made. A spouse has to ask for it or the divorce court will not consider it as an issue to be addressed. If you don't ask, then you don't get. That part is very simple.

If you do request alimony, you then have to prove that you can actually get a divorce. The Court will not award any kind of alimony unless you show you are likely to get an annulment, a limited divorce, or an absolute divorce. Basically you have to ask for alimony and prove the grounds for a divorce before alimony is awarded. You can read more about the grounds for divorce by reading our article titled Divorce – what you need to know.

There are different types of alimony in Maryland: 1) Temporary, 2) Statutory, and 3) Indefinite. Those different types are addressed farther down. But here is a basic breakdown.

1. Temporary alimony is alimony that is awarded to a spouse while in preparation for a divorce proceeding. This may happen when the parties are separated but the divorce proceedings have not officially begun. It must be specifically requested. The Court looks at specific factors to see if temporary alimony should be awarded.
2. Statutory alimony is alimony that is addressed during the divorce proceeding. This type of alimony requires the court to look at very specific factors that are different from the temporary alimony factors. Statutory alimony factors help the divorce court decide how much the alimony award should be, and how long the alimony should be paid. The focus for statutory alimony is rehabilitative. How long will it take to allow a spouse to become self-supporting?
3. Finally, indefinite alimony is alimony that is for an indefinite period. That means no end date, unless the spouse who is receiving alimony re-marries or either spouse dies. To get to indefinite alimony the divorce court will look at the factors required in statutory alimony, as well as other factors specific to indefinite alimony. In a Maryland divorce case, the courts favor rehabilitative alimony rather than indefinite alimony.

Each situation is different. Someone you know who went through a divorce may not have to pay alimony, and another may have to pay alimony indefinitely. Your case is going to be different from their case. Alimony is based on the facts of each unique situation, and your facts are different than your friends. The only way to really find out is to consult a divorce attorney who can tell you what the usual rules are when the local court is presented with facts like those in your divorce case.

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THE NEED FOR PROOF & A GOOD ATTORNEY

In order to get alimony, you must have evidence of all you present to the court. This article will talk a lot about "factors" the divorce court must consider. By saying the court "considers factors, we mean you have to show or prove those factors for the court. The court cannot consider it if you have not introduced it into evidence. You have to provide the court with the information it needs, in legally sufficient form. Otherwise, it will be difficult for them to fairly consider an award of alimony in your divorce case.

This is where having a good divorce lawyer comes in handy. There are some proceedings anyone can do on their own. (Even then, we encourage people to get a consultation for guidance.) But alimony is complicated and requires a lot of proof. If you try to handle your own claim for alimony, you are taking a huge risk. We strongly recommend you retain a divorce attorney if you are interested in pursuing a claim for alimony, or if you need to defend a claim for alimony.

If a Court is not presented with all of the facts they may not be able to make a fair decision. You have to make it easy for the Court to rule in your favor. Your case is like your thumb print, it is individual to you. You cannot compare another person's divorce case to your own.

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TEMPORARY ALIMONY

Temporary alimony is alimony that can be awarded while preparing for a divorce action. Once a divorce action has begun temporary alimony must be specially asked for. The court will base their decision primarily on the need for temporary alimony. The court takes into account the likelihood of a spouse being awarded statutory alimony at the divorce proceeding.

This type of alimony is based on specific factors. The spouse who is requesting alimony must prove that there was a marriage, that there are good grounds for the divorce, the financial need of the spouse asking for alimony, and the ability of the other spouse to pay alimony.

Temporary alimony can lead to more alimony. If you are paying temporary alimony before your divorce is formally filed, and there is no complaint, this can be seen as the ability to pay statutory or indefinite alimony later. Therefore, get a divorce lawyer to help you early in the process.

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STATUTORY ALIMONY OR REHABILITATIVE ALIMONY

An award of statutory alimony is based on the divorce court looking at specific factors. These factors are considered in light of the facts of your particular divorce case. They will help the court to decide whether to award alimony at all, the amount to be awarded, and the length of time the award of alimony is to be paid.

Maryland courts lean towards giving rehabilitative alimony in divorce proceedings. Rehabilitative alimony is alimony that is paid for a certain period of time, until the spouse receiving alimony is able to become self-supporting. The courts want each party to a divorce proceeding to become self supporting as soon as practical. They will not often grant long periods of alimony. When they do, it is called indefinite alimony. See the next item for more detail on that subject.

Statutory alimony is decided during the divorce proceeding and it can be awarded from the date the request for alimony was filed. This is called back-dating. Therefore, the original complaint requesting alimony many months ago can be the date from which alimony can be awarded.

When granting statutory alimony during a divorce proceeding, the court is required to consider specific factors for the amount and length of alimony. No factor is more important than another. However some factors may not apply to your divorce case and will not be as much of an issue for you. Once the court looks at each factor they must expressly state that they have considered the factor and what they have found.

The factors to be considered by the court are:

1. The ability of the spouse asking for alimony (the dependent spouse) to be self-supporting after the divorce,
2. The time required for a dependent spouse to gain enough education or training to find suitable employment after the divorce,
3. The standard of living of the parties during the marriage,
4. The duration/length of marriage,
5. Contributions (both monetary and non-monetary) of each spouse to the well-being of the family,
6. Circumstances contributing to the estrangement of the parties,
7. Age of each party,
8. Physical and mental condition of each party,
9. Ability of the paying spouse to meet the dependent spouse's needs while still supporting themselves after the divorce,
10. Any agreement between the parties concerning alimony,
11. The financial needs and resources of each party. (This includes obvious things like income, assets, and property. It also includes not so obvious things like which spouse got use and possession of the home, your other debts, and your right to receive retirement benefits.)
12. Whether the spouse paying alimony is receiving any type of inpatient medical care, and if so, are they are eligible for medical assistance.

Indefinite alimony is a special award and requires additional factors to be considered by the divorce court before an award of indefinite alimony will be granted. To make matters more confusing, rehabilitative alimony and indefinite alimony can be awarded together. If awarded together, rehabilitative alimony will end at a specified time. Then the indefinite alimony would continue after that.

As you can see, alimony is a difficult and complicated issue. Tackling this request can be hard for anyone. Therefore, get good legal advice from a Maryland divorce attorney if there is an issue of alimony in your divorce case.

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INDEFINITE ALIMONY

Indefinite alimony is awarded to a spouse indefinitely, which means there is no end date set. Indefinite does not mean permanent. It can be modified as discussed below. With indefinite alimony, there is no end date unless a Court orders it, the spouse receiving alimony re-marries, or either spouse dies.

Indefinite alimony occurs when a spouse cannot be expected to become self-supporting due to an inability to earn enough, a disability, or other barriers to earning a living. Indefinite alimony can also be awarded if there is a huge difference between the incomes of the parties which will persist after the divorce. Such a huge difference is called a disparity. There is no set guideline for finding a disparity in a divorce case. The courts address it on a case by case basis. If the disparity is so great to be considered unfair, or unconscionable, then indefinite alimony may be awarded.

Take this example: Spouse A makes $500,000.00 a year and Spouse B makes $20,000.00 a year. If there is no way that Spouse B could ever reach the same level of income as Spouse A, even if they had all the training they could, then indefinite alimony will likely be awarded to Spouse B. The court will consider all the factors and make a decision on the amount and length of time alimony should be paid. It is necessarily done on a case by case basis. It is more than a simple math exercise.

For a divorce court to award indefinite alimony, they must first consider the factors listed in the statutory alimony section above. They must apply those factors to the unique facts of your divorce case. After that, there is a whole new set of factors to consider, including:

1. Age, illness, infirmity or disability that prohibits a person from making substantial progress towards becoming self-supporting after a divorce is final.
2. Will the standard of living of the parties after the divorce be unfairly different, even after the party seeking alimony has made as much progress toward becoming self-supporting as can reasonably be expected?

Once the court considers these additional factors, and the unique facts of that specific divorce, it will make a determination on whether to award indefinite alimony in that particular divorce case.

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MODIFICATION OF ALIMONY

To modify alimony, the court must find that there has been a change of circumstances since the initial award was determined in the initial divorce proceeding. There are two different ways that alimony can be modified after a divorce: 1) there can be an extension of the amount of time that alimony is provided, or 2) the amount of alimony awarded can be changed.

In order to grant an extension of the time period alimony will be paid after the divorce, there must first be a request for such an extension. That request must occur before the time that alimony would expire. The court must then find that without the extension there would be a harsh and unfair result. The court looks at the same statutory alimony factors listed above to determine if an extension is necessary or appropriate.

For a modification of the amount of alimony the requesting party must show that there is a need for modification. There must be something new, or something that has changed since the initial award of alimony for the court to consider a modification. If the issues brought up for modification could have been dealt with at the original divorce proceeding, the court may not consider them during the modification. If you don't use it when you can, you may lose the right to use it later.

If a modification of the amount of alimony is granted, the court is able to make the modification effective from the date the modification request is filed. The court can even make the modified amount effective before the date the modification request is filed. It is up to the Court to decide when the new amount becomes effective.

But, if the you and your spouse have an agreement about alimony that says a divorce court may not modify it, or an agreement specifically stating that either or both of you waive any right to alimony, the court is less likely to modify that agreement during your divorce. The court is not likely to put itself in the middle of an agreement between you and your spouse regarding alimony. It is not like child support, which the court will always reconsider regardless of what you agree to. Children of divorce get special protection from the court. The court is more likely to let adults make their own deals concerning their own income after a divorce.

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TERMINATION OF ALIMONY

The termination of alimony is rather simple. Unless you and your spouse agree otherwise (in a written agreement) alimony terminates upon: 1) death of either party, 2) marriage of the spouse receiving alimony, or 3) the Court finds termination is necessary to avoid a harsh and unfair result. The spouse who is trying to terminate alimony would have the burden of proving the harsh and unfair result.

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PALIMONY

Palimony is not actually a legal term of art (like alimony). It is a term that has been recently coined in the media. It means Alimony that is paid to a pal, or girlfriend or boyfriend. The situation is this: the parties are not married (religious or civil ceremony) but living together in a marriage-like relationship. This is called a common law marriage.

Maryland does not have common law marriage, nor does it recognize a non-married couple's right to alimony upon a break-up of the relationship. You have to have been married to receive alimony in Maryland. So there is no palimony in Maryland.

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CONCLUSION

We hope you found this article to be helpful if you think you have a claim for alimony, or need to defend a claim for alimony in your divorce case. It bears repeating that the entire subject of alimony is tricky. Negotiating it is tricky. Proving it in court is tricky. This is one area where you do not want to represent yourself. It is far too complicated. We strongly encourage you to retain the services of a divorce attorney if you have a potential alimony issue in your divorce case.

At Andrews, Bongar, Starkey & Clagett, we offer a reasonably priced consultation so that you can meet with an divorce attorney and get real answers about your particular case. Each divorce case is unique, and the specific facts of each case make all the difference. Call us today to make an appointment.

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