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.

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.

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.

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

Diana James married Jon James in 1974.  During the marriage neither of them was employed and the couple lived off the interest generated by Diana’s trust fund set up by her father, which was over $500,000 a year when Diana left Jon in 1990.

Jon asked for pendente lite alimony (temporary support) in the divorce which included future tuition payments so that he could obtain a PhD in psychology.  He already had a Masters Degree.   The court granted his request and awarded him $8,000 a month in pendente lite alimony for living expense, education and suit money.

The Maryland Court of Special Appeals reversed, saying that future education expenses were not necessary to preserve the status quo of Jon’s lifestyle while the suit was pending.  Therefore, while they could be considered in determining statutory alimony at the divorce trial, they could not be awarded as pendente lite alimony before the trial.

James v. James, 96 Md. App. 439; 625 A.2d 381 (1993)

Time

  • Statutory alimony may be indefinite or rehabilitative or both.  Indefinite alimony means until either spouse dies or the payee remarries.  Rehabilitative alimony means for a fixed period of time.
  • Pendente lite alimony is paid during the legal proceedings until the divorce trial.  Pendente lite alimony is also called temporary alimony.

Purpose

  • The purpose of statutory alimony is to enable a person to become financially able to support theirself.
  • The purpose of pendente lite alimony is to maintain the status quo until trial.

Elements

  • To determine statutory alimony, the court must consider various factors, including fault.
  • To determine pendente lite alimony, the court considers the payee’s needs and the payor’s ability to pay.

When Decided

  • Statutory alimony is decided at the divorce trial.
  • Pendente lite alimony is decided at the Pendente Lite Hearing.

           The Court of Appeals of Virginia answered this question in the negative in Dailey v Dailey, 59 Va. App 734, 722 SE 2d 321, 2012 Va. App LEXIS 57. 

            The parties had an agreement that provided for alimony of $1,000 per month, modifiable upon a material change in circumstance.    The agreement was silent on whether Mr. Dailey’s retirement constituted a material change in circumstances.   The agreement was incorporated in the final decree of divorce entered in September 2009.

            In November 2010, Mr. Dailey retired, Ms. Dailey began receiving her share of the pension as agreed, $2900 per month, and Mr. Dailey moved to terminate or reduce spousal support.  The parties stipulated that the retirement was a material change in circumstances.  Ms. Dailey argued successfully that it did not warrant a termination or reduction of spousal support because while retirement was a material change, it was also one that was entirely foreseeable.  The trial court denied Mr. Dailey’s motion.

            The Court of Appeals agreed that retirement is foreseeable in the sense that most people eventually retire.  The court noted, however, that Mr. Dailey testified that he had no plans to retire at the time of the divorce.  And the Court reasoned that the effect of retirement was not necessarily foreseeable.  It was noted, for example, that the Agreement provided that Ms. Dailey would be paid her share of the retirement if, as and when Mr. Dailey’s pension was paid out, and that this particular pension plan had no survivor benefits if the participant died before retirement.

            The Court of Appeals held termination or reduction of spousal support upon retirement was not barred under the Agreement on the basis that retirement was foreseeable and therefore not a triggering material change in circumstances.  The Court of Appeals sent the case back to the trial court to determine whether or not to terminate or reduce spousal support.

            Does this mean that in the next Virginia case with a pension with a pre-retirement survivor’s benefit, the spousal support payer’s retirement, and its effect, will be foreseeable and therefore not grounds for a termination or reduction of support?   It is not clear.  Does this mean that a support payer with a pension cannot leave this issue open in the marital settlement agreements because of that risk? Probably so.  It is certainly something we will be looking at very carefully, and in appropriate cases,  negotiating what happens when the support payer retires.  This is especially important in a case like this one where, at the time of divorce, the payer had 29 years of creditable service, and he ended up retiring the very next year.

“If your guy doesn’t pay his alimony, we’ll file a motion for contempt and you can tell him we’ll be asking for jail time,” said Sobel, who was representing the ex-wife.  He didn’t like the ex-husband’s attorney, Caster, ever since he had yelled at Sobel and hung up on him in another case years ago.  Sobel had a long memory.

“Come on, Sobel,” Castor said.  “The judge is not going to put my guy in jail.  It’s contractual alimony, not court ordered alimony.”

“Whadya mean, Castor?  The Agreement is incorporated into the Divorce Decree.  That makes it a court order.  And your client has failed to comply with it.”

“Well there is no imprisonment for debt in Maryland.  Check the state constitution, Sobel.”

“You check it, Castor.  I’ve got it right here.  Section 398 of Article III says ‘No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a wife or dependent children or for alimony shall not constitute a debt within the meaning of this section.’

“Sobel, me and my client will, as they say, see you in court.”

“Tell your client to bring his checkbook or a toothbrush, Castor, for when he goes to the slammer.”

WHEN I GET IT

by

Craig Campbell

My ex-wife’s at the door a-knockin’
Lord that woman won’t leave me alone
Same question, where’s my money
Well, honey, you can’t get blood from a stone

When I get it, you get it
Times are tough, get in line and wait
When I get it, you get it
And that’s all you’re gettin’ today, yeah.

Arnold Schwarzenegger does not agree that he should have to pay alimony or attorney fees for Maria Shriver according to divorce pleadings filed by his attorney in response to her complaint for divorce.

The pleadings may not make much difference if the couple settles out of court.

Both parties are asking the court for joint custody of their sons, age 17 and 13.  Child support will also have to be addressed in the settlement.

Source:  Bakersfieldnow.com