The criteria for ordering alimony have been discussed, in part, in the descriptions of different types of alimony. The factors considered by a court when deciding whether to order alimony based on need of the recipient are similar to the factors considered by a court when dividing property.
- Income and Property of Each Party. The greater the income and property a divorced spouse has, the less likely it is that the spouse will need alimony. Conversely, the less income and property a spouse has, the more she or he will need alimony. Payment of alimony also depends on the ability of one spouse to pay. Alimony is most likely when there is a substantial difference in the property and income of one spouse versus the other. If the spouses’ levels of property and income are similar, alimony is less likely. In looking at the difference in property held by the spouses, courts consider the division of property in connection with the divorce. Some courts order a larger share of property to the less prosperous spouse in order to avoid or reduce the need for alimony to the less prosperous spouse.
- Earning Capacity of Each Spouse. A related factor is the present and future earning capacity of each spouse. If one spouse’s earning capacity is much larger than the other spouse’s earning capacity, that is a significant factor in favor of payment of alimony. To the extent that the earning capacities of the spouses may come closer together by giving the spouse with lower earnings additional time to pursue training, the court may use that as a factor for granting rehabilitative maintenance.
- Impairments in Earning Capacity. If a spouse has little or no earning capacity, that is a basis for granting alimony–probably permanent alimony. Common examples of such impairments are advanced age or chronic illness. Some courts also will note that earning capacity may be limited because of the number of years the spouse spent working as a homemaker. During that time, the spouse who was the homemaker delayed or gave up the opportunity for training or building job skills that could produce a higher income. Meanwhile, the other spouse was able to increase earning capacity, in part, because his or her partner was managing the home. In such circumstances, some courts will grant permanent alimony to help make up for the difference in earning potentials.
Children at Home. The presence of young children at home is a factor in favor of granting alimony, at least until the children are in school full-time. Even after the children are in school, the court may grant alimony so that the parent who is taking care of the children need only work part-time. This factor is more likely to apply if, during the marriage, one of the parents had been serving as a full-time homemaker. If both parents had been working outside the home during the marriage, the court is more likely to expect the status quo to continue. (The Census Bureau reports that more than 60 percent of mothers with pre-school children work outside the home.) As with all types of alimony, a key factor is the ability of the more prosperous spouse to pay. If the better-off spouse has only moderate income, alimony probably will not be ordered or the amount will be moderate.
- Standard of Living During the Marriage. A phrase that was commonly bandied about in connection with divorces of more that thirty-five years ago was that "The wife is entitled to be supported in the style to which she has become accustomed." One does not hear that phrase so much any more, but the standard of living of the husband and wife during the marriage is a factor to be considered. If the parties have sufficient money to continue the same life style when they are separate as when they were married, the court may grant sufficient alimony (and property) to accomplish that. But the reality in most cases is that the money will not go as far as it did during the marriage since it costs more to support two households than one. If the couple’s relatively high life style during the marriage was supported, in part, by incurring debt, the court will not expect that one party must continue to incur debt to support the other. Nonetheless, the standard of living of the husband and wife is a factor in setting alimony. It is to the advantage of the party seeking alimony to present testimony and exhibits reflecting a prosperous lifestyle. Exhibits might include pictures or videos of the family home, possessions, and vacations, perhaps accompanied by copies of receipts and checking account records reflecting the level of the family’s expenditures.
- Duration of Marriage. The longer the marriage, the greater likelihood of alimony, particularly if there is a significant difference in the earning power of the parties. In short-term marriages, alimony is less likely (unless there are young children at home). Alimony normally will not be granted for a time period that is longer than the marriage, but it is possible in some circumstances, such as the chronic disability of the person seeking support.
Contributions of the Spouse Seeking Support to the Education or Career of the Other Spouse. As was discussed in the section on reimbursement alimony, a spouse who helps put the other spouse through school or a training program can use that as a factor to gain alimony, even if the alimony is not necessary for the recipient’s day-to-day support. Spouses who actively support their partners’ careers, such as through frequent entertaining or through working at no wages in the family business, also can use that as a factor in seeking alimony.
- Tax Consequences of Property Division and Alimony. If the payor of alimony receives a tax benefit as the result of the property distribution, that can be a factor in favor of alimony. Conversely, if the payor of alimony must pay additional taxes because of the property division, that could be a factor for paying less alimony or no alimony. Alimony generally is deductible to the spouse who is paying it and is treated as income to the spouse who is receiving it (unless the parties agree otherwise). If the husband and wife are in different income brackets, the tax treatment of alimony results in a net savings of tax payments when considering the combined tax payments of the husband and wife. The amount of money the payor will save in taxes by being able to deduct alimony from taxable income will be greater than the amount of additional taxes the recipient pays on the alimony, which is treated as taxable income (see box for example).
- Fault. In nearly half of states, fault is not a factor in deciding whether or not to grant alimony. In those states, the legislatures and courts wish to focus on economic factors in deciding who receives alimony, and, if so, how much. As with property division in these states, the courts do not want to get in the middle of who-did-what-to-whom. Thus, if one spouse had an affair or was considered mean to the other spouse, that is not a factor in setting alimony. In approximately thirty states, however, fault is a factor. In some of those states, proof of fault by the spouse seeking alimony completely blocks that spouse’s claim to alimony. In other states, fault is a factor that can be considered in setting alimony, although the presence of fault by the spouse seeking alimony does not necessarily preclude alimony.
- Premarital Agreements. As with division of property, a valid premarital agreement can be a trump card that determines the level of alimony that will be paid in the event of divorce. Through the premarital agreement, the parties have entered into a contract by which they waive their rights to have alimony determined by the usual rules of court. In many states, a premarital agreement that gives no alimony or very low alimony to the less wealthy spouse will not be honored if the less wealthy spouse will be left with no reasonable means of support. In that circumstance, the spouse who lacks capacity for self-support is likely to be granted some alimony.