Alimony


Alimony, also called aliment, maintenance, spousal support and spousal maintenance, is a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. The obligation varies depending on the divorce law or family law of each country and prenuptial agreements. In most jurisdictions, it is distinct from child support, where, after divorce, one parent is required to contribute to the support of their children by paying money to the child's other parent or guardian.

Etymology

The term alimony comes from the Latin word wikt:alimonia#Latin, from wikt:alere. Also derived from this word are the terms alimentary, and aliment.

History

The Code of Hammurabi declares that a man must provide sustenance to a woman who has borne him children so that she can raise them:
The above law only applies to women who had children with her husband. This fits more closely with the definition of child support in some jurisdictions.
Alimony is also discussed in the Code of Justinian.
The modern concept of alimony is derived from English ecclesiastical courts that awarded alimony in cases of separation and divorce. Alimony pendente lite was given until the divorce decree, based on the husband's duty to support the wife during a marriage that still continued. Post-divorce or permanent alimony was also based on the notion that the marriage continued, as ecclesiastical courts could only award a divorce a mensa et thoro, similar to a legal separation today. As divorce did not end the marriage, the husband's duty to support his wife remained intact.

Fault-based alimony

Liberalization of divorce laws occurred in the 19th century, but divorce was only possible in cases of marital misconduct. As a result, the requirement to pay alimony became linked to the concept of fault in the divorce. Alimony to wives was paid because it was assumed that the marriage, and the wife's right to support, would have continued but for the misbehavior of the husband. Ending alimony on divorce would have permitted a guilty husband to profit from his own misconduct. In contrast, if the wife committed the misconduct, she was considered to have forfeited any claim to ongoing support. However, during this period, parties could rarely afford alimony, and so it was rarely awarded by courts. As husbands' incomes increased, and with it the possibility of paying alimony, the awarding of alimony increased, generally because a wife could show a need for ongoing financial support, and the husband had the ability to pay.

No-fault alimony

led to changes in alimony. Whereas spousal support was considered a right under the fault-based system, it became conditional under the no-fault approach. According to the American Bar Association, marital fault is a "factor" in awarding alimony in 25 states and the District of Columbia. The no-fault alimony has been criticized in some cases where a domestic violence survivor was required to pay alimony to their abuser.

Permanent or rehabilitative alimony

Permanent alimony has begun to fall out of favor because it encourages the alimony recipient to not find employment or remarry so that they will continue to receive money from their ex-spouse. However, many states still have permanent alimony awards.
Some countries are replacing alimony that maintain a spouse's standard of living with rehabilitative alimony.

Gender bias

In the 1970s, the United States Supreme Court ruled against gender bias in alimony awards. According to the U.S. Census Bureau, the percentage of alimony recipients who are male rose from 2.4% in 2001 to 3.6% in 2006. In states like Massachusetts and Louisiana, the salaries of new spouses may be used in determining the alimony paid to the previous partners. Most recently, in several high-profile divorces, women such as Britney Spears, Victoria Principal, and Jessica Simpson have paid multimillion-dollar settlements in lieu of alimony to ex-husbands. According to divorce lawyers, aggressive pursuit of spousal support by men is becoming more common, as the stigma associated with asking for alimony fades.

Procedure

Procedure varies by country. Once dissolution proceedings commence, either party may seek interim or pendente lite support during the course of the litigation. Where a divorce or dissolution of marriage is granted, either party may ask for post-marital alimony. It is not an absolute right, but may be granted, the amount and terms varying with the circumstances. If one party is already receiving support at the time of the divorce, the previous order is not automatically continued, as the arguments for support during and after the marriage can be different.
Unless the parties agree on the terms of their divorce in a binding written instrument, the court will make a determination based on the legal argument and the testimony submitted by both parties. This can be modified at any future date based on a change of circumstances by either party on proper notice to the other party and application to the court. The courts are generally reluctant to modify an existing agreement unless the reasons are compelling. In some jurisdictions the court always has jurisdiction to grant maintenance should one of the former spouses become a public charge.

By country

Canada

Types of spousal support
In Canada, spousal support may be awarded upon divorce, under the federal Divorce Act, or upon separation without divorce under provincial statutes. There are generally three different forms of spousal support awarded:
  1. Compensatory support – This form of support compensates an individual for her or his contributions to the relationship as well as for any losses that individual has suffered;
  2. Non-compensatory support – In some cases support may be awarded on a needs basis. This form of support may be awarded by a Court where an individual is sick or disabled; and
  3. Contractual support – This form of support upholds a contract between the parties which governs support payments.
Married spouses and common-law spouses
Both married spouses and common-law spouses may be entitled to spousal support. An important distinction between the two is that common-law spouses must start an action claiming spousal support within one year of the breakdown of the relationship. A second important distinction is that only married couples may divorce under the federal Divorce Act; common-law spouses may only separate under provincial legislation, such as Ontario's Family Law Act or British Columbia's Family Relation's Act. No such limitation arises for married individuals.
In addition to being in a marriage or common-law relationship, courts will look at the conditions, means, needs and other circumstances of each spouse. This includes:
  1. The length of time the spouses cohabited;
  2. The functions performed by each spouse during the relationship; and
  3. Any existing orders or agreements.
This is by no means an exhaustive list of factors which the court will consider when determining entitlement. Each case is determined on its own unique set of circumstances.
Factors for awarding spousal support
The federal Divorce Act at s.15.2 states that there are four objectives of spousal support orders:
  1. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  2. Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  3. Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  4. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Amount and duration
The longer the length of cohabitation and the greater the disparity between each party's incomes, the larger an award of spousal support will be and the longer the duration will be. Although there is no set formula to determine the exact amount and duration of spousal support, there are guidelines, referred to as the Spousal Support Advisory Guidelines, which provides ranges for both. the Spousal Support Advisory Guidelines calculate ranges for support after taking into account the relevant factors. Although the courts are not required to abide by the Spousal Support Advisory Guidelines, they are required to take them into account when deciding on the issue of spousal support. The length of the relationship will be taken into account when determining how long spousal support should be paid for. Awards for spousal support can be for a limited term or indefinite.
While declaring bankruptcy does not absolve Canadians of obligations to pay alimony or child support, a 2011 ruling by the Supreme Court of Canada established that under current laws "equalization payments agreed to as part of a divorce are considered debts, and are wiped off a person's balance sheet when they declare bankruptcy."

Czech Republic

Laws of the Czech Republic provide for spousal maintenance both during marriage and after divorce. As main principle, both spouses have the right for generally equal standard of living during the marriage.
The same "generally equal standard of living" applies also to post-divorce period in special cases, when the payee wasn't mostly responsible for the failure of marriage or did not agree with the divorce and the payee suffered serious harm due to the divorce and hadn't committed an act of domestic violence against the payer. In such case the payee may request alimony in amount providing "generally equal standard of living" for a period adequate to circumstances, but no longer than three years.
If those special conditions are not met, both of the divorced have mutual spousal maintenance obligation in case that one of them is not able to provide for themselves due to circumstances originating in marriage, if payment of alimony is reasonable under general circumstances that each of the divorced found themselves in.