Key takeaways:
- Your likelihood of getting alimony depends on the law of the state where you divorce.
- Little beyond having a significantly higher income disqualifies you from alimony.
- Many factors—including each spouse’s conduct and relative ability to provide for their needs after separation—affect whether you’re legally entitled to alimony.
Alimony has a long history uniquely tied to the history of divorce and women’s rights dependent on and independent of their husbands. In modern times, where we aspire to treat men and women equally, alimony is relatively rare. Few recent statistics are available, but as of 2015, only about 8 to 10% of divorces involved alimony.
But what accounts for the low rates? What disqualifies you from alimony? In this article, we explore what alimony is, including a brief history leading into modern spousal support laws. We further discuss how to get alimony, what factors affect your likelihood of getting alimony and what makes alimony less likely or impossible to get.
What is alimony?
Alimony is a somewhat outdated term for payments one spouse or former spouse makes to the other:
- During the divorce or separation process
- After legal separation
- After divorce
Pro Tip:
Although annulment and divorce are usually comparable, the possibility of alimony is one way to distinguish between them. Typically, you may request alimony during a legal separation or divorce but not an annulment. If you’re uncertain whether to seek divorce or annulment, keep the alimony differences in mind.
Many states have replaced the term alimony to distinguish it from the gendered standards established in alimony’s early days, where wives but not husbands could usually request alimony. Usually, states authorize “spousal maintenance” or “spousal support.” For simplicity in the face of the varying terms, we use “alimony” here.
Pro Tip:
Although we use alimony as a shorthand to include alimony, spousal support and spousal maintenance, some state laws distinguish between them. Check your state laws to ensure you know what your state calls alimony.
How to get alimony
There are two ways to get alimony: voluntary agreement or court order.
How to get alimony through a voluntary agreement depends on you, your spouse and your priorities. Your spouse may agree to pay alimony based on, for example:
- A desire to provide for you
- Property or other divorce terms you offer in exchange
- A high likelihood that a court would order alimony
How to get alimony through court usually begins with filing for dissolution of marriage or divorce. You may ask for temporary alimony while the case is pending. Then, you present evidence supporting your request in a court hearing before the judge decides whether to order your spouse to pay alimony following the divorce.
What qualifies a spouse for alimony?
Most states establish specific factors determining what qualifies a spouse for alimony and what disqualifies you from alimony. Some states don’t consider fault-related factors, though many still do.
Factors unrelated to fault
Whether a judge should award alimony typically depends on each spouse’s:
- Financial needs
- Earning capacity, including education, training and relative skills
- Age, physical health and mental health
- Ability to provide for their needs now
- Ability to pay
- Contributions to the home and raising children
- Contributions to the other spouse’s education and career development
Courts also particularly consider the length of the marriage, especially when marriages are long and involve career interruptions.
Many courts also consider the marital standard of living. In essence, the marital standard of living is the standard of living the parties enjoyed while they were married. For example, if your marital standard of living involved living in a large house and taking expensive vacations, those costs will be assessed in calculating your reasonable financial needs after divorce.
Pro Tip:
Gathering evidence of the standard of living you enjoyed during your marriage is an important step in proving your entitlement to alimony, especially for couples with higher incomes. Evidence may include bank and credit card statements, appraisals, and even expert testimony.
Fault-related factors
Among states that consider fault for the divorce related to alimony, courts may consider the following factors:
- Domestic or family violence
- Cheating or adultery
- Other misconduct relating to the reasons for divorce
Other misconduct may include, for example:
- Wasting significant money
- Emotional abuse
- Financial abuse
Pro-tip:
Financial and emotional abuse are often harder to prove and describe than physical abuse, but both play significant roles in divorce. If your spouse has victimized you using these less evident forms of abuse, you may have learned to accept less than you’re entitled to. Consider speaking with a lawyer before agreeing to surrender your rights during divorce, including the right to request alimony.
What disqualifies you from alimony?
The circumstances that may disqualify you from alimony vary depending on the state. Generally, you won’t be eligible for alimony if you make significantly more than your partner. Likewise, if you can meet your reasonable needs through your own income, you won’t qualify.
Some states place additional limits on alimony—or even disqualify spouses from getting it altogether—based on two primary factors: adultery and the length of marriage.
How does cheating affect alimony?
So, how does cheating affect alimony? Different states allow judges to consider adultery to a greater or lesser extent.
Approximately 19 states don’t authorize consideration of adultery in alimony awards, including:
- Alabama
- Alaska
- Arizona
- California
- Colorado
- Delaware
- Hawaii
- Illinois
- Iowa
- Maine
- Minnesota
- Montana
- Nebraska
- Nevada
- New Mexico
- New York
- Vermont
- Washington
- Wisconsin
The 31 states that do authorize consideration of adultery may be divided into three categories:
- Adultery impacting financial need may affect alimony
- Adultery may affect alimony
- Adultery may prohibit alimony
The following states allow judges to consider adultery only if the cheating itself creates a financial need in the faithful spouse’s life:
- Maryland
- New Jersey
- Oklahoma
- Oregon
For example, an unfaithful spouse who wastes away a couple’s savings on their affair partner may owe alimony.
The largest group includes states where adultery is among the many factors a judge may consider, including:
- Arkansas
- Connecticut
- Florida
- Georgia
- Idaho
- Indiana
- Kansas
- Kentucky
- Massachusetts
- Michigan
- Mississippi
- Missouri
- New Hampshire
- North Dakota
- Ohio
- Rhode Island
- South Dakota
- Tennessee
- Texas
- Utah
- Virginia
- West Virginia
- Wyoming
The following states have laws declaring unfaithful spouses surrender their right to alimony by cheating:
- Louisiana
- Pennsylvania
- South Carolina
Finally, North Carolina affirmatively instructs courts to grant alimony to one spouse if the other cheated.
How does marriage length affect alimony?
Some states severely limit alimony for short marriages or only authorize alimony in marriages that last for a set period. For example:
- California law limits the length of alimony to one-half the length of the marriage for couples married for less than ten years.
- Florida law limits the length of alimony to a percentage of the length of the marriage, increasing once a couple has been married for 10 years and again at 20 years.
- New York law limits the length of alimony to a percentage of the length of the marriage, increasing once a couple has been married for 15 years and again at 20 years.
- Texas typically limits alimony to divorces that occur after the spouses have been married for ten years or longer.
So depending on the state, not being married long enough may disqualify you from alimony.
Balance of the factors
Apart from those special cases, whether you get alimony depends on a holistic evaluation of the unique circumstances in your relationship. You may be less likely to receive alimony if you:
- Haven’t been married for very long
- Have a similar income or earning capacity to your spouse
- Are physically and mentally healthy
- Are relatively young
- Have education or career experience, even if you have been out of the workforce for a time
- Haven’t contributed much to your spouse’s education or career development
- Don’t need assistance to maintain your standard of living
- Have abused or mistreated your spouse
- Cheated on your spouse
What disqualifies you from alimony, then, in the absence of exceptional factors, is a court concluding the circumstances don’t justify it. In short, courts should award alimony only if it’s just and equitable to do so.
Voluntary or court-ordered awards of alimony
Qualifying for or being disqualified from alimony is a question of the relationship between many interrelated factors. Whether a court will award alimony depends on the overall circumstances, including each spouse’s conduct, financial circumstances and ability to support themself.
Most divorces don’t go to court, so most alimony awards arise from negotiations between spouses. If you’re considering divorce and may request alimony or expect your spouse to request it, you may fare better with an attorney’s help. Your lawyer can advise you about your state’s laws and quirks, help you negotiate with your spouse and represent you in any necessary court hearings.
Sources
https://www.reuters.com/article/markets/wealth/how-bread-winning-women-are-driving-alimony-reform-idUSKCN0T61O8; https://karencovy.com/wp-content/uploads/2018/06/List-of-States-Where-Adultery-Affects-Alimony.pdf; https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=4320.; http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.08.html; https://www.nysenate.gov/legislation/laws/DOM/236#:~:text=Alimony%2C%20temporary%20and%20permanent; https://statutes.capitol.texas.gov/Docs/FA/htm/FA.8.htm#8.054; https://www.leg.state.nv.us/NRS/NRS-125.html#NRS125Sec150;
