Can Alimony Be Longer Than The Marriage?

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Dr. Murray Malin, an anesthesiologist, was 38 when he met Marcie Minenberg, 27. She went to law school but did not pass the bar exam and was working in a jewelry store. They wed, had one child, and divorced in Maryland after three years of marriage. At the time of trial, Murray had stopped practicing as a doctor due to a drug addiction.

The trial court awarded Marcie alimony of $3,500 a month, non-taxable to her, for five years. Murray appealed arguing that (1) the court could not award alimony that was non-taxable and (2) the court could not award alimony for longer than the marriage.

The Maryland Court of Special Appeals agreed with Murray that the only alimony a court can award is taxable alimony. Parties can make alimony non-taxable, but only by agreement.

As for the length of alimony, the appeals court said there was no law against alimony that lasts longer than the marriage.

Malin v. Mininberg, 153 Md. App. 358, 837 A.2d 178 (2003)

/by James J. Gross

IRS Loses Millions in False Alimony Deductions

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When someone pays alimony they get a tax deduction for it. But the same amount should be included as taxable income on the return of the person receiving alimony. I think most divorce lawyers believed, and cautioned their clients that the IRS computers will automatically detect any variances and flag the returns. It turns out the IRS computers are not that good.

The inspector general for the IRS has issued a report, according to the Washington Times, that the U.S. government loses hundreds of millions of dollars a year in false alimony deductions. The report says that the IRS doesn’t have a system for detecting the false claims. 47 percent of returns filed in 2010 got it wrong said the inspector general.

Most cases involved a deduction for alimony without matching income on the recipient’s return. In other cases, taxpayers did not report who they were paying alimony to or gave a false taxpayer identification number for the recipient. “Apart from examining a small number of tax returns, the IRS generally has no processes or procedures to address this substantial compliance gap,” the report said.

/by James J. Gross

The Alimony Factors

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Section 11-106 of the Family Law Article of the Maryland Code requires the court to consider certain factors in determining the amount and duration of alimony.  This next series will take a look at the factors one by one.

Alimony Factor #1.  The ability of the party seeking alimony to be partly or wholly self-supporting.

Alimony Before 1980.

Alimony originally was awarded on a permanent basis to a financially dependent spouse who was not at fault for the destruction of the marriage.  The thought was that the financially dependent spouse ought to be able to continue with the same standard of living to which that spouse had become accustomed during the marriage, provided the other party could afford it.  Alimony could be modified in the event of a change in circumstances but basically lasted until one of the parties died or the party receiving alimony remarried.

Alimony Today.

The Governor’s Commission on Domestic Relations Report dated January 18, 1980, changed the concept of alimony in Maryland.  New alimony laws were adopted at sections 11-106 and 11-107 of the Family Law Article.

The court in Holstein v. Holstein described it like this:

Under the present statute, the principal function of alimony is rehabilitation. Thus, when awarding alimony, the chancellor is required to consider not only those factors relating to the financial situation, age and health of each party, their standards of living, the duration of marriage and the contribution of each party to its well being but also the ability of the party seeking alimony to be wholly or partially self-supporting and the time deemed necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment. It is apparent, therefore, that the concept of  alimony as a lifetime pension enabling the financially dependent spouse to maintain an accustomed standard of living has largely been superseded by the concept that the economically dependent spouse should be required to become self-supporting, even though that might result in a reduced standard of living.

There are two exceptions when indefinite alimony should be awarded.  These will be discussed in my next post.

/by James J. Gross

Where to File for Custody and Support in Virginia

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When separated spouses in Maryland and the District of Columbia require the aid of the court to resolve issues of support or custody they know where to file their case – in the local Circuit Court in Maryland and in Superior Court in the District of Columbia. And if they have been separated for less than the period required for an absolute divorce, they can include a request for limited divorce (legal separation in DC) in the support and/or custody suit.

Not so in Virginia. The circuit courts are the trial courts of general jurisdiction, and are the trial courts preferred by lawyers, including family lawyers. But the court with jurisdiction of minors, including custody and support of minors, and support of spouses, is the Juvenile & Domestic Relations District Court (“JDR”). The Circuit Court only has concurrent jurisdiction over these matters if there is a divorce case pending. And, unlike in Maryland and DC, when the spouses have been separated for less than the required period (one year in general, six months with a written separation agreement and no minor children), a complaint for limited divorce is often not an option because in Virginia there aren’t any no fault grounds for limited divorce (called divorce from bed & board or, in Latin, a mensa et thoro ).
In this situation, the spouse needing custody or support relief faces a choice. He or she can:

1. File a petition requesting custody and/or support relief in JDR;

2. Assert fault grounds and file a complaint for divorce from bed and board and for the custody and/or support relief in Circuit Court; or

3. Wait the one year period and then file a complaint in Circuit Court for final divorce (called divorce a vincula matrimonii) on separation grounds and for the custody and/or support relief.
Each of these choices has advantages and disadvantages which I will address in my next post.

/by Michael Callahan

Pendente Lite Relief in Virginia

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There are many divorce cases where only one spouse is employed and there are no significant liquid assets or those assets are all under the control of the employed spouse.

In such cases, the financially dependent spouse can seek an award of pendente lite support.  “Pendente lite” is Latin for “pending the litigation”.  It means temporary support until the divorce trial.

Pendente lite support hearings are short and the only issues considered are need for support and ability to pay.  Some jurisdictions have established guidelines for  pendente lite spousal support.

For example the Fairfax County formula is:

When child support is also payable – monthly spousal support equals 28% of the payor’s monthly gross income minus 58% of the payee’s monthly gross income.

When child support is not payable – monthly spousal support equals  30% of the payor’s monthly gross income minus 50% of the payee’s monthly gross income

Child support is generally determined under the child support guidelines. Those guidelines are also used to determine child support pendente lite.

Virginia Courts can also enter pendente lite orders on maintaining health insurance coverage for a spouse or children, responsibility for debt payments during the case, exclusive use and possession of the family residence during the case, payment of attorney’s fees and other costs of the suit, and custody of the children pendente lite . However, most courts are reluctant to rule on custody pendente lite.  This is because custody matters have scheduling priority and will soon be heard as a final matter so pendente lite relief is not necessary unless there is an emergency.  And the judges do not like emergencies, so if you claim you have an emergency it better be a real emergency.

The Court’s ruling on any issue at a hearing on pendente lite relief can be reviewed and modified at the final hearing.

/by Michael Callahan

Maryland Court Denies Alimony Termination for Disabled Husband

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Section 11-108 of the Maryland Family Law Article provides:

Unless the parties agree otherwise, alimony terminates on:

(1) the death of either party; or
(2) on the marriage of the recipient; or
(3) if the court finds that termination is necessary to avoid a harsh and inequitable result

In Moore v. Jacobsen, 373 Md. 185, 817 A.2d 212 (2003), the parties agreed that the husband would pay the wife $833.33 in alimony every month and that no court would “have the power to modify” the agreement with respect to alimony. The separation agreement did not mention whether remarriage would terminate the wife’s right to alimony.   The Maryland Court of Appeals said that the agreement only prohibited modification.  For it to prohibit termination, the parties have to “agree otherwise” by expressly stating that the alimony would not terminate on remarriage.  So the court upheld the termination of alimony.

In Bradley v. Bradley, September 13, 2013, Maryland Court of Special Appeals, the husband had agreed to pay the wife $2,233.33 a month in alimony until the death of either party or the remarriage of the wife.  The agreement said it these provisions were non-modifiable by the court.  The husband petitioned to terminate alimony to avoid a harsh and inequitable result because he had become permanently disabled, had no income, and filed for bankruptcy.  He pointed out that the agreement did not expressly prohibit termination to avoid a harsh and inequitable result.

The court denied termination.  It said that the parties stated the reasons that alimony could be terminated, namely death or remarriage.  They could have included harsh and inequitable result but they chose not to do so.  And they agreed the court could not modify this.

/by James J. Gross

NY Considers Alimony Formula

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A New York state commission on divorce policy found that fighting over alimony particularly increases the cost of the divorce.

The reason for this is that alimony awards are inconsistent and unpredictable.  There is no formula like there is for child support.  It is left to the discretion of the judges with a number of factors they have to consider.

The New York legislature is considering a bill that would apply a formula to alimony.  The New York formula provides for alimony if there is a big discrepancy in the earnings of the two parties.

Massachusetts adopted a formula that tied the length of alimony to the length of the marriage in 2011.

/by James J. Gross

Breadwinner Wives

Although alimony laws are supposed to  apply equally to men and women, women obtain more alimony awards than men.

Changing family roles may make a difference, however, like stay at home dads, working moms and working couples.

USA Today reports that 28% of women make more than their husbands when both spouses work, up from 16% in 1988.

This may change the trend in alimony awards.

/by James J. Gross

Tax Planning for Divorce (Part 5-Payments to Your Ex)

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Guest Post by John Ellsworth, Esq.

If you’re paying alimony, you can take a tax deduction for the payments, even if you don’t itemize deductions.

Keep in mind, though, that the IRS won’t consider the payments to be true alimony unless they are spelled out in the divorce agreement. This is another rule for you to memorize: unless the divorce decree spells it out, it’s probably not going to be accepted by the IRS as alimony.

Your ex, meanwhile, must pay income tax on those amounts. Be sure you know your ex-spouse’s Social Security number. You have to report it on your tax return to claim the alimony deduction.

The opposite is true for child support: You don’t get a deduction for paying child support and the recipient doesn’t pay income tax.

/by James J. Gross

Marriage by Telephone

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Noel Tshiani and Marie-Louise Tshiani met in the Democratic Republic of Congo in 1993 when he was 35 and she was 18.  They decided to get married in the Congo, but on the wedding day, he was on assignment by the World Bank in another African country.  So he appointed his cousin to stand in for him and he participated by telephone.

They lived together first in Arlington, Virginia, then in Potomac, Maryland, and had three children together.  After about 15 years of marriage, Tshiani filed for divorce claiming that Noel was abusive.  The court in Montgomery County, Maryland awarded her alimony, child support, attorney fees and divided the martial property.

Noel appealed arguing that the marriage by telephone was not valid in the Congo and that it should not be recognized by Maryland.  Therefore, the divorce decree was invalid.

The Maryland Court of Special Appeals found that a marriage by telephone was legal in the Congo.  It also held that Maryland would recognize the marriage under the principles of comity.  Under that doctrine, state will give effect to orders and actions of foreign states out of deference and respect.  Therefore the divorce was proper and the decree was affirmed.

Tshiani v. Tshiani

/by James J. Gross