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Alimony

Five Things You Didn’t Know About Alimony

Tuesday, August 4th, 2015

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Alimony or spousal maintenance can be generally defined as payments made by one former spouse to another former spouse post-divorce. Alimony may be paid on a periodic basis, such as monthly or bi-weekly, or alimony may be paid all at once in one lump sum. Alimony is not awarded in every case. In fact, it is within the discretion of the presiding to determine when to award alimony, and if so, how much. The law regarding alimony in Georgia is very complex, and there are several legal factors that must be considered in order to determine the most appropriate alimony award in each case. Many times, these factors are relatively obvious and self-explanatory. However, there are some pretty quirky aspects of alimony as well. Below is a list of five things that even the most well informed divorce litigant may not know about alimony.

  1. There is no alimony calculator in Georgia. Unlike child support, which can be determined using Georgia’s Child Support Worksheet, there is no formula or calculator used to determine alimony awards in Georgia. When awarding alimony, Georgia courts must rely on Georgia’s alimony factors to determine the amount of alimony.
  2. Men are entitled to alimony. Many individuals mistakenly believe that alimony may only be awarded to a wife post-divorce. Although this was previously the law in many states, including Georgia, now both men and women may receive alimony post-divorce if the court determines such an award is appropriate.
  3. An adulterous spouse is not entitled to alimony. In Georgia, if one spouse proves to the presiding court that the other spouse committed adultery during the marriage, and that adultery resulted in the breakdown of the marriage, the offending spouse is barred from receiving an award of alimony.
  4. Alimony generally terminates upon the remarriage of the recipient spouse. If the spouse ordered to pay alimony can show the court the recipient spouse has remarried, the obligated spouse can petition the court to terminate the alimony obligation. An obligated spouse may also petition the court to terminate the alimony obligation if he or she can prove the recipient spouse is living with a new girlfriend or boyfriend.
  5. Alimony is deemed income to the recipient. Because alimony is considered income, a spouse who has been awarded alimony must declare alimony payments received as income for the purpose of taxes. Conversely, the obligated spouse can claim alimony paid as a deduction when filing tax returns.

 

Lump Sum Alimony in Georgia

Sunday, August 2nd, 2015

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Just like periodic or monthly alimony, lump sum alimony is spousal support paid by one spouse to the other spouse post-divorce. What differentiates lump sum alimony from periodic alimony is how the payment is made. Instead of being paid in monthly or bi-weekly payments, lump sum alimony that is either awarded or paid in one lump sum. Although lump sum alimony takes the form of a single payment from the obligated spouse to the recipient spouse, it should not be confused with equitable division. Lump sum alimony is not a division of a couple’s marital assets, it is a lump sum payment to be made from the obligated spouse’s separate or non-marital assets.

There are certain benefits to receiving alimony in a lump sum, instead of on a periodic basis. For example, a lump sum alimony award ensures the recipient spouse will receive a pre-determined amount of alimony, regardless of remarriage, cohabitation or change in financial circumstances. Just as there are benefits, there are drawbacks as well. To determine if lump sum alimony is a viable option in your divorce, see our article regarding lump sum alimony in Georgia for more information, and contact one of our friendly Georgia divorce professionals with any questions.

Ten Questions to ask before seeking Alimony

Saturday, May 2nd, 2015

Aside from child support, alimony is often one of the most hotly contested issues of divorce. In most cases however, the arguments basically boil down to how much the recipient spouse needs as support versus how much the obligated spouse is able to pay. Generally, the obligated spouse either argues that he or she doesn’t have sufficient financial resources to pay alimony or that the recipient spouse does not need spousal support due to that spouse’s independent resources of earning ability. Because the battle regarding alimony often revolves around the financial needs and resources of the respective parties, if you plan to seek alimony during your divorce process, it is important for you to consider the following questions. After considering the questions below the next essential step is to consult with a team of Atlanta Divorce Attorneys with experience negotiating alimony settlement and winning alimony awards at trial.

  1. How Much Money Do You Need To Live On Every Month? It is essential to make a budget and be able to accurately articulate how much financial support you will need going forward in order to successfully seek an award of alimony.
  1. Will you be Living With Someone or Getting Remarried Within the Next Few Years? If so, please note that in Georgia, alimony generally terminates upon the remarriage or cohabitation of the recipient spouse.
  1. How Much Can Your Spouse Realistically Afford to Pay You? If your spouse makes $5,000 per month, she cannot realistically afford to pay $4,500 per month in alimony.
  1. How Secure is Your Job, and how secure is your spouse’s job? Both questions relate to your spouse’s ability to pay going forward, and your potential financial need.
  1. How Will Alimony Affect Your Income Taxes? Alimony is treated as taxable income to the recipient. This is one aspect that many individuals going through the divorce process do not realize. Before entering into any agreement concerning alimony, be sure to consult an accountant or financial adviser regarding the tax implications.
  1. Will Your Alimony Award be For a Fixed Period of Time, or Will It Be Reviewable? In Georgia, it is not uncommon for couples to enter into agreement concerning alimony where both parties agree not to seek an upward or downward modification of alimony. It is important to consider this option, and whether such an agreement is the option for your circumstances.
  1. How are You Going to Secure Alimony? What if your former spouse dies before his or her alimony obligation is exhausted? Because it is highly unlikely that your ex-spouse will set aside money in his or her estate plan to satisfy alimony willingly, be sure to include a provision in any settlement agreement requiring your ex-spouse to maintain life insurance, naming you as a beneficiary and sufficient to cover the alimony obligation, while they are obligated to pay alimony.

Billionaires – They’re Just Like Us

Wednesday, April 8th, 2015

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When you go through a divorce in Georgia, you have to resolve four main issues: equitable division of assets, child custody, child support, and alimony. Whether you are a millionaire, buried in debt, or somewhere in between, the general issues remain the same. For equitable division, it does not matter how many marital assets a couple has, or the value of those assets. Whatever the financial status, the assets will be divided equitably, according to the facts of the case. This is also true for alimony, which is based upon one party’s need and the other party’s ability to pay. O.C.G.A. § 19-6-1(c). Certainly, in some situations, one spouse’s ability to pay the alimony may be greater than in others, but the balancing test remains the same. For child support in Georgia, both party’s incomes are plugged into the child support worksheets along with other known expenses for the children. O.C.G.A. § 19-6-15. Deviations can be made for high income (more than $30,000/month) or low income but, again, the basic calculation works the same way. O.C.G.A. § 19-6-15(i)(2)(A) and (B).

As an example of the above, consider the pending divorce case of hedge fund billionaire Ken Griffin and his wife. Billionaire Ken Griffin’s wife wants $1 million a month in divorce, by Jillian Eugenios, CNN Money, February 24, 2015. The couple has been married for 12 years and has three young children together. Mrs, Griffin submitted a budget with her divorce filing which details the amount of money she needs each month and includes $160,000/month for hotels, $2,000/month for stationery, $14,000/month for food, and $300,000/month for a private jet. Overall, Mrs. Griffin says she needs $1 million a month for expenses for the children. Not surprisingly, Mr. Griffin has scoffed at these numbers, saying these expenses are not really for the children. In addition, the article states that Mrs. Griffin is worth $50 million on her own and, thus, Mr. Griffin is arguing that she can pay for her own monthly expenses.

If this case were in Georgia, the court would look at many factors in determining alimony, including the standard of living established during the marriage. O.C.G.A. § 19-6-5(a)(1). However, it would also look at the financial resources of each party. O.C.G.A. § 19-6-5(a)(4). In a situation such as this, the court may find that Mrs. Griffin does not need any alimony because she has sufficient financial resources of her own. On the other hand, a court may find that she does need some alimony to retain the standard of living the parties had prior to the divorce. As far as child support, if this case were in Georgia, the high-income deviation might kick in on both sides in this case. The noncustodial parent will be paying some amount of child support just as any other noncustodial parent would.

Even though this case deals with many more zeros that the typical divorce case, no one is above the law. If alimony is appropriate under the facts of the case, it will be awarded. If there are children of the marriage, some amount of child support will be awarded. The court will look at the facts of the case and make a determination, just as in any other divorce case.

Should I Seek Alimony During my Georgia Divorce?

Tuesday, January 6th, 2015

“What about alimony?” As Georgia divorce attorneys, after speaking with a client or potential client concerning the different paths an individual may pursue during their Georgia divorce, the topic of alimony inevitably comes up. Most commonly, we are presented with the following question: “Should I seek alimony?” As with many issue concerning divorce and family law, the answer to this question largely depends on the facts and circumstances of each individual case. However, below are some factors that anyone wondering whether to seek alimony during their Georgia divorce should consider.

Standard of living. What standard of living did you enjoy during the marriage? Will you be able to maintain that standard of living post-divorce without the aid of spousal maintenance? If you feel that is would be difficult or impossible to maintain your current standard of living without alimony, you should consider seeking an award of alimony.

Duration of the marriage. How long were you and your spouse married? If your marriage was relatively short, seeking alimony may not be the best tactic to take during divorce. However, if your marriage lasted several years, seeking alimony may be advisable, especially if you came to depend on the support of your spouse during the marriage.

Physical and emotional condition. Do you suffer from a physical, mental or emotional condition that would make it hard for you to support yourself post-divorce? If so, seeking alimony may be the appropriate alternative to ensure your physical and emotional well being post-divorce.

Financial resources and financial condition. Are your personal or separate financial resources limited as opposed to your spouse’s? Would your spouse have the ability to pay alimony in the event a judge awarded you alimony? Generally, when making alimony determinations, judges often weigh one parties need versus the other party’s ability to pay. You have sufficient need, and your spouse has the ability to pay alimony, you should consider asking for alimony in your Petition for Divorce.

Employment. Are you employed? If not, how long would it take you to obtain the necessary education and training to become employed? Do you have the financial resources necessary to obtain the employment and training necessary to become employable? These questions should be considered in determine whether to seek alimony, because a judge may award rehabilitative alimony to give you the opportunity seek the education necessary to become employed.

Contribution to the marriage. Did you sacrifice your career or earning potential to support your spouse during marriage? If so, you should asking the judge presiding over your divorce to award alimony.

 

 

What is a Varn Waiver?

Wednesday, December 10th, 2014

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If you are currently going through divorce in Georgia, or considering Georgia divorce, it is likely that you have become familiar with the phrase “Varn waiver.” Although you may have become familiar with this phrase either through research or through consultation with attorneys, the meaning behind this phrase may remain a mystery.

A Varn waiver simply refers to the waiver of alimony in divorce. Unlike child support, which may not be waived by the parties to a divorce action, the right to seek alimony may be waived by one or both parties to a divorce action. When one or both parties waives the right to seek alimony, the section of the Marital Settlement Agreement detailing this waiver is referred to as a Varn waiver. These waivers are referred to as Varn waivers, because the Georgia Supreme Court opinion that allows for such a waiver is Varn v. Varn, 242 Ga. 309 (1978).

It is important to fully contemplate the consequences of including such a waiver in a settlement agreement, because the inclusion of such a waiver will permanently waive the right of either party to receive alimony or to seek a modification of alimony should alimony be awarded. The inclusion or exclusion of a Varn waiver could have significant financial consequences, therefore it is advised that you contact one of Meriwether & Tharp’s knowledgeable divorce professionals if you have any questions regarding this matter.

Alimony in Georgia: How Much Does Length of Marriage Really Matter?

Wednesday, October 22nd, 2014

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Among the four parts of Georgia divorce, which include equitable division, alimony, child custody, and child support, alimony is probably the most popular subject by far. Although alimony is oft discussed, it is also likely the most misunderstood component of Georgia divorce.

The misconceptions regarding alimony include, among others, that alimony cannot be awarded to men, that alimony is a lifetime award in all cases, and that alimony cannot be terminated once awarded. Another very popular misconception about alimony is that the length of the marriage dictates the award of alimony. Put plainly, many believe that less alimony will be awarded for shorter marriages and more alimony will be awarded upon the dissolution of longer marriages. Although the length of marriage is one of the factors that Georgia courts use to determine the amount and duration of alimony, if alimony is awarded at all, this is only one of several factors. According to Georgia law:

“The following shall be considered in determining the amount of alimony, if any, to be awarded:

   (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.”

O.C.G.A. § 19-6-5. As indicated by the above cited statutory law, in addition to the length of marriage, there are 7 other factors that a court is required to consider in determining the award of alimony. Thus, even in the case of a relatively short marriage, the presiding court may make a large award of alimony.

This contention is made clear in the case of Sprouse v. Sprouse, 285 Ga. 468 (2009). In this case, decided by the Georgia Supreme Court in 2009, the Supreme Court upheld a grant of 13 years of alimony, based on a marriage that lasted only two years. Although such an award for a marriage of only two years is extremely rare, at trial, the trial judge determined that since the total length of the couple’s relationship was 13 years, including time they were together prior to getting married, the court considered the award of alimony appropriated. The Supreme Court agreed.

This case is a prime example of why seeking the guidance and advice of a team of divorce professionals is necessary for anyone seeking to begin the divorce process in Georgia. Georgia family law is one of the most complex and fact driven areas of law, so only experienced Atlanta divorce attorneys, familiar with Georgia divorce law and tendencies of local judges, can accurately anticipate and prepare for how a court may rule.

How to Prove an Ex-Spouse’s Cohabitation in Alimony Dispute

Wednesday, April 23rd, 2014

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According to Georgia alimony law:

Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse, the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse.

O.C.G.A. § 19-6-19(b).

Put plainly, if your ex-spouse begins living with a new boyfriend or girlfriend after you have been order to pay alimony to him or her, you may ask the court to downwardly modify your alimony obligation or terminate it completely. Hurley v. Hurley, 249 Ga. 220 (1982). Despite their ability to seek a downward modification or termination of alimony pursuant to Georgia law, many obligated ex-spouses find it difficult if not impossible to prove to the court that their ex-spouse is cohabitation with a significant other.

Very rarely will an ex-spouse receiving alimony be willing to admit to cohabitation, because such an admission has the potential to negatively impact that amount of alimony received. Additionally, alimony recipients may go to great lengths to mask such relationships in an effort to thwart an obligated ex-spouse’s efforts to reduce alimony payment. With this being said, what is an obligated ex-spouse to do if he or she knows their ex-spouse is cohabitating with a lover but is unable to prove the relationship? Below is a list of questions and concerns for obligated ex-spouses to consider in deterring whether there is enough evidence to seek a modification of alimony based on the recipient’s cohabitation.

  • Does the cohabitating couple share a residence? How may this cohabitation be proven?  – Even if the residence is owned or paid for by one of the parties solely, there are other ways to prove a shared residence, such as the amount of time each party spends at the residence or the amount of food consumed at the residence. For instance, an increase I the amount of food purchased for consumption in the home may indicate the addition of another occupant.
  • Is the payment of utility or other household bills shared by the couple? If your ex-spouse’s new lover is responsible for paying certain household expenses, like utility bills, this fact points toward cohabitation.
  • How does your ex-spouse characterize his or her relationship? Does your ex represent the relationship as a committed or exclusive relationship?
  • Does your ex’s new boyfriend or girlfriend share parenting responsibilities with your ex?
  • Are there pictures of your ex and their paramour on social media sites that tend to prove the couple’s cohabitation?
  • Does you ex seem to have more cash on hand than normal? If so, this may point to the financial contribution of another person in his or her household.

Alimony Is Taxable To The Recipient

Tuesday, April 15th, 2014

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“Alimony is taxable to the recipient and deductible payor.” Upon the close of a divorce matter, many parties are either informed of this important fact orally or in the form of a letter or other written notice provided by their attorney. Although this important statement is recited to divorce litigants at the conclusion of their divorce, many parties, especially recipient of alimony, fail to adequately appreciate the gravity of this statement until he or she receives a hefty and unexpected tax bill from the IRS.

Alimony is taxable to the recipient. What this means practically is that those who receive alimony payments are required to pay income tax on any amount received at the end of the tax year. Because alimony is not income derived from employment, no federal tax is withheld from the income amount. Thus, at the end of the tax year, the recipient spouse is solely responsible for paying the tax assessed on the income received.

In order to avoid the potentially devastating situation of receiving a large and unexpected tax bill, alimony recipients should be sure to place aside a set amount of funds each month to be used to satisfy the taxes assessed against this income.  Additionally, alimony recipients should consult a financial advisor regarding developing a financial plan specifically designed to address post-divorce financial issues faced by alimony recipients.

The Four Parts of Georgia Divorce: Alimony

Tuesday, April 8th, 2014

In reviewing our series concerning the four parts of Georgia divorce it becomes obvious that there are several financial aspects of divorce.  As a result, many going through the divorce process may find it hard to distinguish alimony, child support and equitable division. Although all three may involve monthly or lump sum payments made by one spouse to the other, child support, alimony and equitable division all serve different purposes, and the rules regarding how each may be satisfied are regulated by different sections of Georgia law. Unlike child support, which is intended to provide for the maintenance and support of minor children, or equitable division of marital property, which is designed to ensure that each spouse receives a fair and equitable portion of marital property upon divorce, the purpose of alimony is to provide support to the spouse or ex-spouse who is in need of economic support during separation or post-divorce.

According to Georgia law, alimony is defined as an allowance made out of one spouse’s or ex-spouse’s separate estate for the support and maintenance of the other ex-spouse. O.C.G.A. 19-6-1. Although alimony is designed to provide support to the spouse or ex-spouse who is in need of economic support, an award of alimony will not be solely based on the needs of one spouse. The ability of the other spouse to pay alimony will be considered as well. Id.

Unlike child support, which generally must be awarded in every case involving minor children in need of support, the court presiding over a divorce matter is not required to make an award of alimony in every case. In determining whether an award of alimony is warranted in a particular case, the presiding court will consider, among others, the following factors:

1)    The cause of the parties’ separation. If one party proves that the separation between the spouses was a result of the other parties adultery or desertion, the culpable party will be barred from receiving alimony.

2)    The success of the divorce action. If the claim of alimony in incidental to a divorce action and the divorce is denied, the claim for alimony dissipates with the divorce action.

3)    The voluntary provision of support by one spouse to the other. If one spouse has already voluntarily agreed to support the other spouse consistent with that spouse’s needs, the recipient spouse will be barred from recovering additional support in the form of alimony unless the agreement between the spouses is invalid or the other spouse refuses to comply with the terms of the agreement.

4)    The grounds for divorce. If the divorce is granted on the ground of fraud, duress or any other grounds which attacks the validity of the marriage contract itself, alimony will not be awarded.

O.C.G.A. § 19-6-1; O.C.G.A. § 19-6-8; Clements v. Clements, 255 Ga. 714 (1986); Owens v. Owens, 247 Ga. 139 (1981); Davis v. Davis, 206 Ga. 559 (1950); Ridgeway v. Ridgeway, 224 Ga. 310 (1968); Walker v. Walker, 53 Ga.App. 769 (1936); York v. York, 202 Ga. 50 (1947).

If the presiding court determines alimony is warranted, the court must then determine the amount and duration of alimony. With regard to duration, Georgia courts may award both temporary and permanent alimony. Temporary alimony may be awarded to a needy spouse during the course of divorce proceedings to provide for that parties support during the couple’s separation. Once the divorce is final, the court may also award that spouse permanent alimony.    The term permanent alimony is misleading, because Georgia courts very rarely order alimony to continue for the lifetime of the recipient spouse, although they may. O.C.G.A. § 19-6-4; 19-6-9. Most often, Georgia courts order alimony to continue for more limited time periods, generally between 2 to 10 years.

In this event, the court will likely order alimony to be paid in monthly or bimonthly payments. Alternatively, depending on the financial resources and needs of the parties, the court may also order alimony to be paid out in a lump sum once the divorce is final. Johnson v. Johnson, 220 Ga. 461 (1964). With regard to amount, there is no formula or specific calculation used to determine how much alimony a spouse should receive. Instead, courts rely on Georgia’s alimony factors, which are listed below, to determine the amount of the alimony award.

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.

O.C.G.A. § 19-6-5.