A Closer Look at the Criteria


The Ability of The Party Seeking Alimony To Be Wholly or Partly Self-Supporting

Present and future earning capacity is an important consideration. Educational background, history of employment ,what skills and abilities were acquired, and how do those skills and abilities translate in the work world? What efforts have been made to become employed?  If you are seeking alimony has have a limited earning capacity, that can become a basis for longer term or even permanent alimony.   Future earning capacity may be limited because of illness, the number of years a spouse has spent working as a homemaker, or any number of other factors unique to your situation.  Your spouse may have been able taken to increase their earning capacity as a result of what you did, or did not, do.  Some courts may consider a longer term of alimony as a means of “doing what is fair” for the now economically disadvantaged partner.

            The continuing presence of young children at home can be a factor in favor of requiring alimony until the task of raising the children is done, and thereafter so long as it takes for that spouse to reintegrate into the job marketplace.  

Time Necessary For The Party Seeking Alimony To Gain Sufficient Education Or Training To To Find Suitable Employment

"Rehabilitation" is a healthy strategy for everyone. It is a wise strategy on the part of the person facing a claim for alimony to offer funds to enable his dependent spouse to retrain him/herself to increase the recipient’s earnings potential. If the offer is refused, it is an obvious “talking point.” The retraining, or the upgrading of outdated qualifications is a "healthy investment" from everyone’s perspective. 

The Standard Of Living The Parties Established During Their Marriage

Theoretically, an award of alimony should enable the spouse receiving alimony (taking into account his or her own earnings or ability to earn) to establish the same social standing, comforts and luxuries as life which would have been enjoyed prior to the separation.  The pre-existing "standard of living", however, is one of  many factors a court is going to take into account in establishing an appropriate amount and an appropriate duration of alimony.  If (and only if) there is an ability to pay, an  award of alimony should secure to the recipient the same social standing, comforts, and luxuries of life as  would probably have been enjoyed had it not been for the enforced separation, after taking into account the recipient’s ability and obligation to provide for their own support.  But in a one year marriage, a return to the "standard of living" during that one year may not be just or appropriate. What is insufficient under one set of circumstances may be sufficient under another set of circumstances. What might be luxury for one could be poverty for another.

The Duration of the Marriage

A short-term marriage makes indefinite alimony less likely. However, when the parties had a young child who would be residing and/or visiting at the residences of both parents, the gross disparity was said to leave open the possibility that indefinite alimony could be awarded. A long marriage increases the likelihood of indefinite alimony, but even that is no guarantee.   Alimony normally will not be granted for a time period that is longer than the marriage, but it remains possible in some circumstances, such as the where a spouse suffers from a chronic disability which permanently impairs their earning capacity.  Nothing is certain as it relates  this topic.  A five year marriage for a couple of advanced age (50-60)  may be  long marriage.  A five year marriage between two twenty-year olds is not a long marriage.  A short marriage, particularly if the spouses are “elderly’ in terms of the work world and the opportunities it offers, is not necessarily a bar to indefinite alimony if there is an “unconscionable” disparity between the comparative abilities of two divorcing spouses to earn an income after their divorce. In long marriages (20 years and more), the term “til death us do part” moves closer to being a reality.

The Contributions, Monetary and Non-Monetary, Of Each Party To The Well-Being Of The Family

Spouses contribute in many ways to the perpetuation of the marital partnership, and some forms of contribution have nothing to do with money. Caring for children, maintenance of the residence, arranging a personal social life, providing emotional support to a spouse in need of such support, listening, being affectionate, etc. etc. are given significance via this factor. These direct contributions to the marital enterprise also lend indirect support to the achievements of the other spouse. They help enable the other spouse to spend the time required to gain a reputation, to establish a business network and to enhance (usually, his) ability to earn a living in the future, without giving up the “non-monetary” benefits of a marriage.

The Circumstances That Contributed To the Estrangement Of The Parties 

Most jurisdictions look at “the circumstances that contributed to the estrangement of the parties”, not to “fault”, in determining the amount and duration of alimony awards. For example, the notion that a spouse who committed adultery forfeits the benefit of her efforts during a marriage is a punitive doctrine with some very harsh and inequitable results. There are undoubtedly a few traditional judges who have that particular state of mind, but they tend to be fewer in number.  The "circumstances that contribute to the estrangement” of two spouses is a concept which is considerably more complex than the notion of "fault".  As they say, it takes two to tango.

The Age of the Parties

Age is relevant in the analysis of alimony only as it relates to earning capacity and physical health. In the job market, forty is not old. There is ample time for rehabilitation, employment and self sufficiency. Less so at 55.

The Physical and Mental Condition of Each Party

Physical and mental condition are factors which bear directly upon earning capacity. Even in a relatively short marriage, and even at a relatively young age, a spouse who becomes disabled may, in the minds of some judges, be entitled to long term or indefinite alimony. They may be required to seek social security disability benefits, but those benefits seldom translate to self- sufficiency.

The Ability of the Party From Whom Alimony is Sought to Meet That Party's Needs While Meeting the Needs of the Party Seeking Alimony

The Court will examine the paying spouse’s ability to meet their own legitimate needs before requiring the payment of alimony.   A Court cannot require the paying spouse to take unreasonable steps in order to be self-supporting. Generally, a Court will not require the paying spouse to take a second job to pay enough alimony to meet the needs of a spouse, unless having a second job has been a typical pattern throughout the marriage.  But nothing is ever simple.  Suppose the paying spouse has worked two jobs for ten years prior to the divorce, and the family has become accustomed to the lifestyle the extra money has made possible. But now the spouse with the second job is almost 60 years of age and argues that he or she cannot continue to work the hours which have been worked in the past. What should be done? There are always at least two points of view!

Any Agreement Between The Parties

As with division of property, a valid premarital agreement can determine the amount and duration of alimony that will be paid in the event of divorce. As with any agreement, the court must be satisfied that it was negotiated fairly, without coercion or duress, and that the amount and duration, in the context of all other factors, cannot be said to be unconscionable.  An agreement that gives no alimony, or minimal alimony, may not be honored if a spouse is left with no reasonable means of support.

The Financial Needs and Financial Resources Of Each Party

In considering the amount and duration of any alimony award, the Court will take into account the amount of income and property the potentially recipient spouse has in his or her possession. That means the Court will take into account the division of property which it has made in its divorce decree. The Court will take into account both the marital and non-marital monies allocated to the spouse seeking alimony. 


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