Here’s what you need to know if you’re dealing with alimony issues in Delaware.
- Who is Entitled to Alimony in Delaware?
- Types of Alimony in Delaware
- What Factors Are Used to Determine Alimony?
- Modifying or Terminating Spousal Support in Delaware
- Enforcing Delaware Spousal Support Awards
- Spousal Support and Taxes
- Delaware Alimony FAQs
Who is Entitled to Alimony in Delaware?
Alimony is often referred to as maintenance or spousal support in Delaware. You can receive alimony if you were financially dependent on your spouse during your marriage. You must be able to prove this to a judge and document that you don’t have sufficient property to provide for your own needs.
The court will also consider that the supporting spouse has the means to pay spousal support without creating financial hardship. When these tests are met, a judge may decide to grant alimony based on several statutory factors.
Delaware alimony awards are gender neutral, meaning either spouse has the right to request an award.
Types of Alimony in Delaware
Divorces can often take several months to resolve, and many times a spouse will need financial support while a divorce is pending. A dependent spouse can file a Motion for Interim Relief to request this type of temporary alimony. This type of support is commonly referred to as alimony pendente lite.
Interim alimony will terminate when a divorce is finalized. It is often replaced by another type of alimony, but this isn’t always the case.
When courts award alimony after the fact, it may be short-term or long term. It depends on the circumstances of the case. While Delaware family court judges have a broad framework to decide alimony cases, there is no specific formula for alimony calculations, and each is decided on a case-by-case basis.
Delaware courts view alimony as rehabilitative in most cases.
This means one spouse is not being paid by the other as a way to support them. Instead, alimony is paid to provide interim support until a spouse can become self-sufficient by finding gainful employment through training, sufficient education, or other similar steps.
The spouse seeking alimony in Delaware is also obligated to seek employment and take the steps necessary to make sure that happens.
Exceptions are allowed if the presiding judge determines the recipient spouse has an incapacitating or advanced medical condition, disability, or age. Judges will also allow exceptions when a spouse has minor children living with them, creating a short-term delay in finding employment.
Divorcing couples can also create their own settlement agreements regarding alimony as a means of having more control over the process and avoiding a court battle. Others choose mediation to reach an agreement. The court must approve both of these to ensure a fair and just award.
Read More: How to File for Divorce in Delaware
What Factors Are Used to Determine Alimony?
There are several tests and steps to determine alimony in Delaware. When a party seeking maintenance makes a request, that spouse must prove:
- They are dependent on the other party for financial support.
- They lack enough income to provide for their needs.
- The spouse cannot immediately become self-supporting through gainful employment. Often, this is because the spouse is the custodian of a minor child whose medical issues or circumstances make it necessary to postpone finding work.
In Delaware, courts have broad discretion to decide on the amount and duration of alimony awards.
Delaware divorce laws provide the factors judges can use to assist the court in reaching a fair and just alimony agreement.
An important rule to remember is that if you have been married for 20 years or longer, there is no limit to how long you can receive alimony. However, if you were married for less than 20 years, you cannot collect alimony for more than 50% of the length of the marriage. For example, if you were married for 12 years, you could only collect maintenance for up to 6 years.
Marriages of 20 years or longer more easily qualify for a spouse for permanent alimony.
The family court considers the following factors when determining alimony:
- Financial resources, including any marital property or separate property you will own at the end of the divorce and your ability to meet your needs on your own
- If you need any additional education or training to find a job and how much it will cost and how long will it take to complete this task
- The standard of living established during the marriage
- The length of the marriage
- The age, physical, and emotional condition of both parties
- Any financial or other contribution made by either party to the education, training, vocational skills, career, or earning capacity of the other party
- The ability of a spouse to meet their needs while paying alimony
- The tax consequences of alimony payments
- Whether either party has put off or given up economic, education, or other employment opportunities during the marriage
- Any other factors the judge thinks it is fair and appropriate to consider.
Read More: How to Find Hidden Assets in a Divorce
Modifying or Terminating Spousal Support in Delaware
If you experience a burden of significant change in circumstances after your original alimony order is put in place, you may be able to modify the award. You’ll need to petition the court and provide proof of that change.
Changes can include life events such as a job loss, severe illness or injury, retirement, remarriage or other similar actions. If the person paying alimony gets a pay raise or a higher paying job, this may not be grounds for the other party to request more in alimony.
Several variables may prompt a Delaware alimony modification by either party and each case is treated individually based on the case’s merits.
If you are awarded alimony, your spouse no longer has to pay it when either of you dies, you remarry, or you cohabitate with another person. It does not matter if you get any financial benefit from the relationship; proof of sexual relations is not required to prove cohabitation.
Enforcing Delaware Spousal Support Awards
If you fail to pay alimony promptly, the debt is known as alimony arrears.
Courts and receiving spouses can use several possible actions to collect arrears. This may include small claims court actions, wage garnishment, or mediation.
Non-paying spouses can also be charged with contempt of court for defying an order to pay alimony. If this happens, courts can issue fines, require the spouse to pay attorney’s fees, and in rare cases, may even sentence a spouse to jail.
Other collection methods routinely employed include placing liens on property and bank assets, suspending drivers’ and professional licenses, and other measures to compel a spouse to pay.
Spousal Support and Taxes
Due to changes in Federal tax laws, the payor cannot deduct alimony or separate maintenance payments under a divorce or separation instrument executed after 2018. These payments are also not included as taxable income for recipients.
The same is true of alimony paid under a divorce or separation instrument executed before 2019 and modified after 2018 if the modification expressly states that the alimony isn’t deductible to the payor spouse or included in the income of the recipient spouse.
Taxpayers paying alimony under a divorce agreement executed before 2019 can deduct those payments from taxes when the following criteria are met:
- The recipient must be a spouse or former spouse
- There must be a written divorce or separation instrument
- A spouse must pay alimony with cash payments (such as checks and money orders)
- Maintenance does not continue after the recipient dies
- The parties must live apart, residing in different households
- The parties must file separate tax returns (they cannot file a joint return and claim the alimony deduction)
- The court-ordered payment of alimony cannot state that payments are not deductible
Delaware Alimony FAQs
What impact does a prenuptial or postnuptial agreement have on alimony?
Prenuptial agreements and postnups are legally enforceable contracts. As such, a family court will abide by the terms of a prenuptial or postnuptial agreement. If the agreement explicitly provides for no alimony in the event of a divorce, no alimony will be awarded.
Is marital fault considered when determining alimony?
Delaware is a no-fault state, and family courts will not consider the reason for a divorce as a determining factor when deciding to award alimony. If you had an affair, abandoned your marriage, or committed other similar acts of marital misconduct, they will not factor into the award, amount, or duration.
Does child custody impact alimony awards?
Custody and the amount of child support required between two parties are factors that are considered when determining alimony.
If the custodian of any children cannot support themselves due to the children being of an age or condition that hinders the individual’s ability to support the child, often resulting in that parent staying home to care for the child, it will have an impact on an alimony award.
