Monday, April 18, 2011

Alimony: Does it still Exist?

By Eric Ballinger
During the initial consultation in divorce cases, alimony is one of the most important issues. Wives often ask the question, "Am I entitled to alimony?" while husbands are often demonstrative, "I'm not willing to pay alimony." Still yet, there who ask, "Does alimony still exist?" No matter what the questions are, the subject of alimony is very emotional. As married couples are beginning to split up the financial reality of one family severing into two separate households soon sets in. Clients on either side of the alimony questions, the paying or the receiving, are asking themselves, "how am I going to make it?" These are the hard questions that the Courts are called on to make in divorce cases every day. Alimony is still the law in Georgia and it is a reality the divorce litigants need to consider in planning for a divorce.

The term alimony comes from the Latin, "to nourish". The legal concept of alimony is born out of the husband's obligation to support his wife, even after the dissolution of the marriage through his "fault". Much of the law on the subject stems from the time when all divorce was based on the fault of one party or the other. The wife was not entitled to alimony if the divorce was based upon her fault, and hence the wife's adultery and desertion of the marriage was a bar to her receiving alimony. The traditional concepts eroded in the 1970s with the advent of the "no fault" divorce along with the women entering the workforce at with wage earning capacity approaching that of men. Until the middle 1970's, alimony was only available to women, however changes to Georgia law allowed for main to make a claim for alimony.

There are two aspects of alimony, temporary and permanent. Temporary alimony is a tool designed to level the playing field in a divorce. It allows the Court to maintain the financial status quo of the family, maintaining the marital assets such as the mortgage on the home, insuring the utilities are paid and debts are kept current. It also allows the Court to insure that each party is adequately represented by counsel by apportioning an award of attorney's fees and legal expenses from the party with the most resources. Fault is not an issue in temporary alimony. On the other hand, permanent alimony is an allowance awarded from the separate property of one spouse for the support of the other. Alimony can be awarded either in a lump sum or as periodic payments. It can be awarded for a lifetime or for a specified period of time.

The issue of alimony is one aspect of divorce that seems to be shrouded in a great deal of myth. Much of this myth is propagated by celebrity divorces as well as popular depiction of divorce in television and the movies. Much of this mythic view of alimony comes from the early twentieth century notion of the stay at home wife and mother divorced by the philandering husband. In this traditional paradigm, the wife receives an alimony award sufficient to maintain her lifestyle while the husband is left in state of near poverty as punishment for stepping outside the bonds of marriage. The more realistic and modern application of alimony is to allow a spouse leaving the marriage some level of financial security for a reasonable period of time to allow that spouse an opportunity to get back on his or her feet and establish their own household. The application of alimony is dependent on facts and circumstances of each marriage and each spouse.

Alimony should not to be confused with the division of assets. Alimony is awarded from the separate assets of each of the parties, whether it is the separate property from before, during or after t to keep the he marriage, including the wages of the obligated spouse. Sometimes, the Court will award alimony in lieu of and equitable division of property. This occurs in cases where the marital assets are needed by one spouse to generate income, such as business assets, and it is ore expedient for the Court to allow the obligated party the income generating property and award alimony to the other spouse. Furthermore, alimony is not intended to be the punitive damages for fault in a divorce. While alimony usually feels punitive to the obligated party, the Court is not authorized to punish a party in a divorce, no matter how egregious their conduct.

Most parties ask the question, "how much will alimony be?" That is a tough question because unlike child support, there is no formula or worksheet. The decision of whether or not to award alimony and how much to award is left to the finder of fact; either a judge or jury. Georgia law provides for eight factors in determining alimony:
(1) The standard of living established during the marriage;
(2) The duration of the marriage;
(3) The age and the physical and emotional condition of both parties;
(4) The financial resources of each party;
(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;
(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
(8) Such other relevant factors as the court deems equitable and proper.

Ga. Code Ann., § 19-6-5. While these factors allow each of the parties to address a number any number of issues regarding their marriage, to include the length of the marriage, the ability for the requesting party to earn income and the conduct of each of the parties during the marriage. These factors boil down most saliently to the balancing of the needs of the receiving party against the ability to pay of the obligated party.

One of the toughest issues to tackle is the ability of the obligated spouse to pay. Most divorces have their roots in the financial straits of the husband and wife. While there is often no doubt that a wife is in need alimony, the husband has a diminished ability to pay due to economic misfortune, a job loss of his own fault or even an intentional suppression of income in order to evade paying support in the first place. For a party seeking alimony, it is important to stress not only the financial needs, but to prove the obligated party has the ability to pay, even if they are hiding it. For a spouse defending against a claim for alimony, it is important to stress that the supposed needs are frivolous in nature and to prove good solid income figures and that any decreases in income are not of your own creation.

In Georgia, judges have a great deal of discretion in making an award of alimony and very rarely are these decisions set aside by appellate courts. Each judge approaches the issue differently based upon their own personal experiences both on and off the bench. Different judges can take the same set of facts an come to very different conclusions. In circumstances where a judge is very hostile to your position, alimony is one issue in a divorce that can be decided by a jury, but this is a decision that needs to be made with a great deal of discernment. Jury trials are expensive and time consuming. Court backlogs could delay trial for even years and juries typically are not well disposed to hearing personal drama of divorce cases.

It is important seek the advice of a seasoned family lawyer regarding the question of alimony. A lawyer with experience handling divorce cases in the jurisdiction that will hear your case will be familiar with the propensities of your judge and is skilled in presenting your case in the light that best advocates for your position. An experienced lawyer can help you decide if it best for your to have a bench trial or a jury trial. An experiment family lawyer can give you the best advice about alimony as it applies to your case.For more information, see our website.

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