This is a beginner’s guide to alimony.
In this guide, I’ll cover the types of alimony in Alabama, how to request alimony, the factors that a judge takes into consideration, and how long maintenance lasts, and other common questions.
Let’s get started.
What is alimony?
Depending on where you look, you may see alimony referred to as spousal support or spousal maintenance in Alabama.
Rest assured that no matter which label it is given, all of these terms mean the same thing. However, in Alabama, alimony is usually referred to as maintenance.
Alimony is court-ordered financial support awarded to a spouse after a divorce. In Alabama, although there are a set of criteria that are applied when deciding if and how much alimony should be paid, and for how long, the courts have a lot of discretion in deciding all of these issues.
According to the Code of Alabama – Title 30 – Chapters: 2-51, 2-52, and 2-55, the court considers the value of each spouse’s assets and “up to one-half of any pension, 401k or retirement benefits as long as the length of the marriage was 10 years or more.”
While alimony is known by different names that all mean the same thing, there are different kinds of alimony that can be awarded. That’s where you should pay attention instead.
Types of alimony in Alabama
There are six types of alimony in Alabama.
Permanent alimony is when regular payments are made by one spouse to the other for an undetermined amount of time. A spouse must keep paying alimony indefinitely and perhaps until one of the spouses dies, remarries or cohabits with someone of the opposite gender.
Judges generally award permanent alimony when a couple has been married for a long time, and one spouse has become financially dependent on the other. This may be the case if one spouse worked outside the home while the other spouse served as a homemaker and raised children during the marriage.
Periodic alimony is paid when one spouse pays alimony to the other on a regular basis. For example, periodic alimony might have to be paid bi-weekly or monthly from one spouse’s earnings. These awards can be modified or terminated when there is a major change in the life of one spouse or the other.
Lump-sum alimony is exactly what it sounds like. The entire alimony amount is paid at one time. No other additional payments are made after that event.
Alimony pendente lite is another name for temporary alimony. A judge may award temporary alimony to one spouse while a divorce case is still going on. This is done primarily to help the spouse in need to financially survive until a final divorce decree with permanent alimony provisions is issued.
Rehabilitative alimony is a specific kind of periodic alimony. One spouse will pay the other spouse only until that spouse is able to complete their education or find a job. The premise is to allow the needier spouse to become more self-supporting and recover their financial independence after a divorce.
Alimony in gross is a one-time property settlement. It can’t be modified at a later date.
How do you petition for alimony in Alabama?
You can attempt to negotiate alimony payments with your ex and if the agreement is reasonable, chances are the court will approve it.
Some people are able to come to an agreement on alimony as part of an uncontested divorce. But many are not. When you and your spouse cannot reach an agreement, the court will decide the matter for you.
In shorter duration marriages, a judge may award temporary or rehabilitative alimony, perhaps for two or three years, until a spouse is able to stabilize his or her life and return to the job market.
To ensure that you have the best chance of receiving alimony, you need to request it at the very beginning of your divorce. You should request it either in a Divorce Complaint when you file for divorce or in an Answer to a Divorce Complaint, if your spouse initiated the action
Learn More: How to File for a Divorce in Alabama
If you fail to do so at the beginning, you may still be granted alimony by the courts, but your award could be delayed. You could also be putting yourself in jeopardy of receiving any kind of temporary award as well.
To prove that you’re entitled to alimony, you’ll need to prove financial need. You don’t need to be unemployed to qualify. You just need to prove, given your new set of circumstances, that you need help during and/or after a divorce.
You can attempt to hammer out an alimony agreement with your ex, or you can let the courts decide the matter for you. If you do bring something to a judge that is reasonable and that you both agree on, there’s a good chance it will be approved.
There are also instances when a court may award alimony even if neither party requests it.
When you have a disagreement, because alimony can be challenging and complex, you should seriously consider hiring an attorney to assist you.
How the division of assets can factor into alimony
Alabama is an equitable division state. This means that marital assets are divided equitably in the eyes of the court, but not always on an even 50-50 basis.
It must first be determined which assets are marital assets and which are separate assets. Generally, any property acquired during a marriage are considered marital assets. Assets acquired before marriage and after the date of separation may be considered separate and therefore not eligible to be divided.
There are exceptions to what is considered a marital asset, such as gifts or inheritances, or when separate assets are commingled during a marriage. You need to carefully review and document your claims as part of this process.
Alimony is part of the discussion when the courts attempt to strike an equitable balance in the division of assets.
The factors that affect alimony in Alabama
If you can’t reach an agreement with your ex regarding alimony, the court will decide the matter for you. Several factors are considered to determine if alimony is appropriate and in what amount. The court may consider:
Separate vs. marital assets. As noted above, a division of assets is critical in reaching a settlement. The important thing to note is that the court will only consider the issue of alimony after the division of assets has been settled. In some cases, the court may rule that the division of assets is sufficient for supporting the lower-earning party. In other cases, alimony may be awarded to supplement the assets.
Length of the marriage. The longer a couple has been married, the more likely it is that alimony will be awarded. However, there is no minimum length of a marriage in Alabama law that would permit an alimony award.
Duration of the marriage can also affect how long alimony will be awarded. Under a 2018 state law, alimony cannot be awarded for longer than the duration of the marriage itself. So, if you were married for 8 years, you’ll only be able to collect a maximum of 8 years of alimony. The exception is if the couple was married for more than 20 years. In this case, unlimited alimony may be permitted in “extraordinary circumstances.”
Spousal conduct. If one spouse’s conduct (i.e. adultery) led to the divorce, this can be considered as one of the factors in a fault-based Alabama divorce. Adultery may lead to a larger award if the payer is the guilty party, or the judge may reduce the award if the recipient was at fault.
Future earning potential for each spouse. If you have the ability to make more money in the future than your ex, this will have an impact on how much is awarded.
The spouses’ respective ages and health. If one spouse is older and this impacts an ability to become self-sufficient, or if a health condition creates impediments, then a judge can consider these elements as well.
The standard of living for each spouse during the marriage. Alimony is an attempt to let each spouse live a standard of living as close as they had during marriage.
Dependent children’s needs. Child support should address this issue, but it can also be considered as part of an alimony discussion as well.
Related: A Guide to Child Support in Alabama
Contributions as a homemaker or parent. If one spouse agrees to stay at home and take care of children and domestic issues, this is also factored in as a contribution to the marriage. Just because one spouse makes $100,000 a year at a job and the other spouse is a stay-at-home spouse, this will not negatively impact on the stay-at-home spouse.
Any other factor the judge deems relevant. This is a catch-all factor that covers everything else that could have an impact on how alimony is determined. Judges have a high degree of discretion in determining what those other factors are, as long as they can be linked to being relevant to the alimony discussion.
You and your attorney need to thoroughly understand what these factors are and how they are applied so that you can use them to your best advantage if you are seeking alimony.
How long does alimony last in Alabama?
Because nothing is set in stone, the duration of alimony varies from divorce to divorce.
Assume that the shorter the marriage, the shorter the duration of alimony will be. In marriages of less than 20 years, by statute alimony can’t last longer than the marriage itself.
In shorter duration marriages, the court may award temporary or rehabilitative alimony only, which could be for as little as two or three years. A state law (HB257) signed in 2017 limits rehabilitative alimony to a maximum of five years unless compelling reasons can be given to show why there should be a deviation.
Alimony pendente lite, given while the case is still pending, ends with the final divorce decree.
Modification of alimony in Alabama
Alimony amounts can be modified up or down, or terminated it can be shown there is a material change in the circumstances of either spouse. To modify alimony, you must file a request with the court.
Material changes can include:
- Proving a spouse now has the ability to support themselves
- The spouse got married
- The spouse is in a cohabitating relationship that is similar to marriage (shared expenses and finances)
- Death of one ex or the other
- Significant change in either spouse’s finances (inheritance, large medical bills, etc.)
- Changes in health that affect the ability to pay alimony
- The length of time between the initial award of alimony and the request for modification
Sometimes ex-spouses agree to continue alimony even after remarriage, but this is not allowed in Alabama. But also be aware that in cases where a spouse receiving alimony conceals his or her remarriage while collecting alimony, the other spouse can seek reimbursement of any alimony paid after the remarriage.
Alabama Alimony FAQs
What happens if my ex does not pay alimony as directed?
When alimony is not paid in a timely manner, it becomes known as alimony arrears. There are several possible actions a payee can take to collect alimony. Arrears can be collected through small claims court actions, mediation, lien or real or personal property, wage garnishment and other similar actions.
An ex who does not comply with an alimony award can also be found in contempt of court and may face legal issues as well.
Is there a statute of limitations on collecting alimony in Alabama?
Yes, but it is a long statute of limitations. You have 20 years to collect money from a judgment, including alimony, as part of your divorce. This is after obtaining a judgment, which is governed by a limitation of six years. Unlike child support, which is enforced by the state’s Child Support Enforcement Division, there is no legal entity in the state to collect for alimony. This means you must initiate the court action on your own.
Can alimony be waived by a prenuptial agreement?
Yes. A prenuptial agreement can be structured in such a way as to have one spouse waive the right to receive alimony in the event of a divorce. However, this does not extend to child support payments which must be determined at the time of the divorce.
What is alimony mediation?
As part of attempting to reach an overall settlement, alimony can be one of the issues brought to the table in a mediation process. This may be preferable to the more adversarial route of having a judge decide alimony or attempting to figure out alimony on your own.
What role does adultery play in an Alabama divorce?
Alabama divorce laws permit two kinds of divorces: no-fault and fault-based.
With a no-fault divorce, no particular reason is given for why the spouses are divorcing. One spouse only needs to say the marriage is broken and can’t be fixed.
Fault-based divorces are based on proof that one party committed marital misconduct, defined as a wrongful, intentional action that caused irreparable harm to the marriage. Adultery falls into this category and is the most common basis for fault-based divorce in Alabama.
As such, adultery can be an important variable when trying to obtain a fault-based divorce. But when it comes to alimony, the role of adultery can be relevant, but it’s more limited. The “conduct of the spouses” factor includes adultery provided that adultery is the cause of the divorce.
This means judges do have the discretion to consider adultery as a relevant factor when awarding alimony. By law, the judge has the power to give part of the adulterer’s piece of the couple’s finances to the spouse who is the victim of adultery. Similarly, a judge could also reduce an alimony award, if the payee has committed adultery.
Can you discharge alimony payments if you file for bankruptcy?
No. You are still responsible for making timely alimony payments.
Does child support impact the alimony calculation in Alabama?
A parent paying court-ordered child support or alimony from other relationships can subtract those payments from gross income to get an adjusted gross income. That would impact the amount of spousal support.
Is alimony taxed in Alabama?
When the Tax Cuts ad Jobs Act was signed into law, it changed the tax treatment of alimony. For divorce agreements signed on January 1, 2019 or later, alimony payments are no longer tax-deductible by the payor and no longer counted as income for the recipient spouse. If you entered into an agreement prior to that time, then you are grandfathered into the prior tax treatment (alimony payments are generally taxable and deductible).
How is alimony impacted in Alabama if one spouse or the other is in the military?
Child support and spousal support are determined by Alabama state guidelines, but federal law dictates that these awards may not exceed 60% of a service member’s pay and allowances.
