If you’ve been reading the news, you know that there has been a tremendous buzz regarding the payment of alimony, also called “spousal support”. In September 2014 the Statute which pertains to the payment of alimony was amended. It is important to note that the amendment did not eliminate alimony but, rather, it changed some significant factors to be considered when a couple is divorcing. I will briefly summarize those changes for you but URGE YOU TO SEEK COUNSEL if you are in a situation where the payment of - or receipt of - alimony is an issue that you are considering. It is important that you seek out the advice of counsel BEFORE you enter into any agreement with your spouse because once a Court Order is entered it may be very difficult to change.
So, what has changed? The most significant change is to what was traditionally known as “permanent” alimony. The name has changed to “open durational alimony” and there is now a requirement that you be married for at least 20 years before the Court will award open durational alimony. This relates to the LENGTH of time that alimony is paid in what would typically be called a long term divorce. The change does not address the amount of any payment. As with many provisions in the Statute, there are some exceptions to this rule which is why it is important that you seek counsel to understand your rights and options.
The law has also changed with regard to what will happen when the paying spouse retires or is about to retire which may, in turn, create a significant change to the income of the party receiving the payments. You should seek counsel to discuss what is going to happen to alimony paid or received upon retirement.
In all divorces or dissolutions of a civil union, the Court may award one or more of 4 types of alimony to EITHER PARTY:
1. Open durational alimony (formerly known as permanent alimony)
2. Limited durational alimony
3. Rehabilitative alimony
4. Reimbursement alimony
If you are married less than 20 years, you may be entitled to “limited durational alimony” rather than open durational alimony. This means that the length of term of your alimony will be for a limited time and, again, this has nothing to do with the amount of the payment. Pursuant to the new law, the length of term of your alimony can not, **except in exceptional circumstances **, exceed the length of your marriage. For example, if you are married for 10 years, your alimony award or obligation must be 10 years or less. There are a number of **exceptional circumstances** set out in the statute including, but not limited to the age of the parties, the health of the parties and/or the distribution of the financial assets to the parties in the divorce. These exceptional circumstances are extremely fact sensitive and, at the risk of sounding redundant, I urge you to seek the advice of counsel to ensure that your rights are protected.
When the issue of alimony is being considered, the Court will consider, but not be limited to, the following factors:
(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties
(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(7) The parental responsibilities for the children;
(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by that party;
(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
(13) The nature, amount, and length of pendente lite support paid, if any; and
(14) Any other factors which the court may deem relevant.
Send a Message to Bonnie...