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Can you be too rich for alimony in a divorce?

Can you be too rich to get alimony in a divorce? This is a great problem to have.

Alimony in Divorce – A South Carolina Case

In a 2017 case out of South Carolina, the court awarded $5,000 a month in permanent alimony to the wife in a 28-year marriage. The husband made over $400,000 a year and she made far less.

On appeal, the husband pointed out that the wife received $1.28 million in the divorce and could support herself without alimony.

The appeals court found “It would be inequitable to require the Wife to invade her only assets to support herself while Husband may save and continue to draw a substantial salary and dividends from his company.” The case is now on appeal to the South Carolina Supreme Court.

— Sweeney v. Sweeney, 420 S.C. 69, 75, 800 S.E.2d 148, 151 (Ct. App. 2017)

Alimony in Divorce – A Maryland Case

Divorce law is different in each state. The outcome might not have been the same in Maryland. In 1990, the Maryland Court of Special Appeals reviewed a case where the parties each had over $1 million in assets.

The trial judge denied alimony in the divorce. The judge found the parties to be self-supporting and therefore not entitled to alimony.

The appeals court affirmed, noting that alimony is not intended to be a pension for life. The court stated the objective of alimony is to help a dependent spouse time to become self-supporting.

— Hull v. Hull, 83 Md. App. 218, 574 A.2d 20 (1990)

Temporary Alimony in a Divorce

In a 1994 case in Maryland, the Court of Special Appeals reviewed a case involving temporary alimony in a divorce. The test for temporary alimony is need and ability to pay. The husband appealed the trial court’s award of temporary alimony to his wife arguing that she didn’t need alimony because she had $160,000 in assets she could use.

The appeals court noted that the Hull case required an award of alimony to be based on a conclusion that a recipient spouse is not self-sufficient. However, the trial judge had considerable equitable discretion in reaching that conclusion.

The law does not require a spouse to liquidate assets in order to receive alimony. The trial court did not err in finding the wife was not self-sufficient despite her investment assets.

— Reuter v. Reuter, 102 Md.App. 2112 (1994)

It is a lament divorce judges frequently hear.  Since alimony and child support are based on income, you can’t blame the judges for being somewhat cynical.  It is a law of the Universe.  Income decreases in the year of divorce.

But what if you make a million dollars a year?  Carol Rose, estranged spouse of former baseball star, Pete Rose, says that Pete makes at least $100,000 a month signing autographs and making personal appearances.  However, according to Carol, he has spent most of it on high stakes gambling and still owes significant amounts to the casinos and the IRS.

Carol is asking the court to compel Pete to reveal the full details of his finances in their divorce.

Word of a case has reached us from India.  A woman there asked the Bombay High Court to increase her alimony award granted in a divorce.

The court rejected her request because it found that she was already wealthy and therefore not entitled to alimony.

The court said that a woman who is able to maintain her lifestyle despite the estrangement doesn’t need alimony.

We have a similar concept in Maryland, although stated in different words.  Alimony is not intended to be a pension for life.

The objective of alimony is to help a dependent spouse time to become self-supporting even if that results in a lower standard of living.  Holston v. Holston, 58 Md. App. 308, 473 A.2d 459 (1984).

Parties who each had over a million dollars in assets were already self-supporting and therefore not entitled to alimony.  Hull v. Hull, 83 Md. App. 218, 574 A.2d 20 (1990).

by James J. Gross

She was an army nurse and he was in the army. Mr. and Mrs. Donigan married in 1943. A daughter was born two years later. They lived in Baltimore until 1948 when the husband rejoined the army and was assigned to Japan.

The wife and child joined him six months later but discovered the husband had become infatuated with a girl serving with the Red Cross. Eventually they returned to the US and the husband filed for divorce. The trial judge denied alimony to the wife because he found that she as employed and self-supporting.

The appeals court viewed it differently, however, and said “The husband is about forty years of age but  prefers to travel about the country rather than work, or as his wife puts it, he enjoys play more than he does work….if the wife’s income is insufficient for her needs, the husband’s obligation is not less because he would rather be idle than industrious and peripatetic than productive, although he has the mental and physical ability to earn a living.”

Donigan v. Donigan, 208 Md. 511, 119 A.2d 430 (1956)

The sixth factor the court has to consider in determining the amount and duration of alimony is “the circumstances that contributed to the estrangement of the parties.” MD Family Law Article 11-106(6).

But can adultery after separation contribute to the estrangement of the parties? Nan Willoughby married Robert Willoughby in 1928.  They had a stormy marriage for several years and Nan moved out in 1966 filing for divorce based on constructive desertion. Robert then moved in with another woman and Nan filed a supplemental complaint for adultery.

The trial judge found that the husband’s adultery was the fault that destroyed the home. The husband appealed arguing that the home had been destroyed with the separation of the parties some time before.

The Maryland Court of Appeals disagreed with the husband finding that:

Appellant wishes to isolate one point in time and determine the ‘fault which destroyed the home’ as of that time. We think the concept is broader than this, and permits the trial judge properly to consider all of the circumstances resulting in the destruction of the marriage, including the conduct and acts of the parties both prior and subsequent to actual physical separation.

Willoughby v. Willoughby, 256 Md. 590 (1970)

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)

Albert  Mumma married Jean in 1952 and they had three children together.   Albert supported the family as an architect.  He had an office in Georgetown.  In 1968 the parties had a violent altercation and they decided to divorce.

The judge awarded $200 a month in alimony and $500 a month in child support to Jean, plus attorney fees and costs.  Albert appealed complaining that he was ordered to pay support of $8,400 a year, while his income was only $9,422 in 1968 and $12,726  in 1969.   Jean countered that, among other things, he received gifts from his parents.

The DC Court of Appeals reversed the trial court, holding that “gifts do not constitute income” and suggested that Albert’s income tax returns would be an appropriate guide to his actual income in the absence of affirmative evidence otherwise.

Mumma v. Mumma, 280 A.2d 73 (1971)

If you have been “Keeping Up With the Kardashians” on television, you will be interested to know that Kris Jenner filed divorce papers against Bruce Jenner yesterday in Los Angeles Superior Court, citing irreconcilable differences.

The couple have been married for 23 years.  It is the third marriage for Bruce and the second for Kris.  They had no prenuptial agreement.

The split appears to be amicable and the parties have agreed on joint physical and legal custody of their only child who is still a minor, Kylie Jenner.  Neither is asking for alimony.

George and Betty Lou Blake had been married for 37 years. He was 56 and she was 57 when they got divorced. He made $42,500 a year and she made $20,000 a year.

Courts now favor rehabilitative alimony for a set period rather than indefinite alimony, but there are two exceptions. The judge granted Betty indefinite alimony and the appeals court affirmed.

Since George made twice as much as Betty, the judge might have applied the second exception to rehabilitative alimony and given Betty indefinite alimony on the basis of unconscionable disparity.

Instead, the judge applied the second exception, finding that in view of her age and, given the time necessary for further education or training, “I don’t know that there’s a whole lot more that she can do. She’s doing the best she can.”

Blake v. Blake, 81 Md. App. 712, 569 A.2d 724 (1990)

Since 1980 the law in Maryland has favored rehabilitative alimony over indefinite alimony. Rehabilitative alimony is for a fixed period. Indefinite alimony is until one of the parties dies or the party receiving alimony remarries.

The purpose of alimony is to make a person self-sufficient and not to award a life- time pension. Nevertheless, the legislature has recognized two exceptions where indefinite alimony might be appropriate.

The first is where the dependent spouse cannot become self-sufficient due to age, illness, infirmity, or disability.

The second is where there will be an unconscionable disparity in the standard of living of the parties after the divorce.

Section 11-106(c) of the Family Law Article, Maryland Code.