Each state’s circuit courts or juvenile and domestic relations courts have the discretion to award alimony to divorcing spouses. Spouses typically address alimony issues during separation or at divorce, and payments are based upon each spouse’s respective income earnings or potential to earn income. Depending upon the state’s divorce laws, filing for alimony after the divorce requires a showing of a change in circumstances by the spouse requesting alimony.
Alimony awards are spousal support payments that one spouse makes to another during separation and after divorce. If spouses can agree upon alimony payments between them, then judges do not have to decide whether one spouse is entitled to receive alimony. Spouses who are not able to agree usually seek legal help and resolve their alimony disputes in court. Most courts that award alimony payments award only rehabilitative or temporary alimony. Rehabilitative alimony payments stop when the spouse receiving alimony is able to become self-sufficient, marries again or the agreement naturally terminates through death of either party. Courts can consider fault, incomes between the spouses, education levels, age of the spouses and length of the marriage when awarding alimony.
Divorce Decrees and Alimony
Generally, before issuing a divorce decree, most courts require parties to resolve all pending marital and property issues prior to seeking a final legal resolution. Divorce orders or divorce decrees will typically merge or incorporate the spouses’ separation or property settlement agreement into the final divorce decree. Most divorce attorneys will specifically address the issue of alimony as a separate provision in the property settlement or separation agreement. If the parties do not address it, then most contracts have legal waiver provisions stating that if the alimony issue or any other issue is not resolved and integrated into the final divorce decree, then parties waive their rights to request it subsequently.
Spouses who cannot agree to alimony payments can circumvent the general release provisions by reserving their rights to determine alimony payments at a future date, pending resolution between the parties or resolution through litigation. In many states, unless issues are preserved for future determination or after the final decree, then all other marital issues are deemed waived through the divorce hearing or entry of divorce request since official divorce decrees automatically bring all marital issues before the court in these states.
Most family law judges require spouses to show “changed circumstances” in order to file for alimony after a final divorce decree is issued. Since settlement agreements are binding contracts with mutual exchanges of consideration, states require a spouse requesting alimony to proffer evidence as to why the spouse believes the earlier agreement should be modified or overturned. Spouses must show a substantial change in personal and financial circumstances. A spouse requesting alimony must show that the earlier agreement should be set aside or modified because a set of new and unforeseeable circumstances arose after the divorce that did not exist prior to the divorce.
Since family laws frequently change, you should not use this information as a substitute for legal advice. Seek advice through an attorney licensed to practice law in your jurisdiction.
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