On January 1, 2018, changes to two statutory provisions affecting alimony went into effect. The two statutes are §§ 30-2-56 and 30-2-57. §30-2-56 now allows for an award of “interim alimony”, also known as alimony pendente lite, while a divorce, legal separation, or annulment is pending. This is not a big change as it was already an option that courts regularly awarded – the only change is that it is now part of Alabama statutory law – in other words, courts no longer have an option to not award it if circumstances permit. What circumstances would affect this interim award? One, the spouse seeking the award must establish the validity of the marriage; two, the spouse must demonstrate a need for interim alimony; and three, the other spouse must have an ability to pay the interim alimony.
The statute also allows for the retroactive applicability of interim alimony from the date the Complaint was filed. This means that even if you wait to request interim alimony, you can receive an award from the date of the filing of the Complaint.
The factors used in determining an award of interim alimony has not changed and is the same considerations that are used in awarding rehabilitative or periodic alimony.
Ala. Code §30-2-57 speaks to these considerations:
(a) Upon granting a divorce or legal separation, the court shall award either rehabilitative or periodic alimony as provided in subsection (b), if the court expressly finds all of the following:
(1) A party lacks a separate estate or his or her separate estate is insufficient to enable the party to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage.
(2) The other party has the ability to supply those means without undue economic hardship.
(3) The circumstances of the case make it equitable.
Section (b)(1) has changed as well, detailing the requirements for rehabilitative and periodic alimony rewards as follows:
(b) If a party has met the requirements of subsection (a), the court shall award alimony in the following priority:
(1) Unless the court expressly finds that rehabilitative alimony is not feasible, the court shall award rehabilitative alimony to the party for a limited duration, not to exceed five years, absent extraordinary circumstances, of an amount to enable the party to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage.
(2) In cases in which the court expressly finds that rehabilitation is not feasible, a good-faith attempt at rehabilitation fails, or good-faith rehabilitation only enables the party to partially acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall award the party periodic installments of alimony for a duration and an amount to allow the party to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage as provided in subsection (g).
In other words, a court will award rehabilitative alimony by default, not to exceed 5 years, based on evidence of the economic state of the parties while married. A court will only award periodic alimony when it “expressly finds” that rehabilitation is not feasible, it fails after a good faith attempt at rehabilitation, or will only partially preserve the economic state of the parties while married. Thus, it stands to reason that there must be a good faith effort on the part of the one receiving rehabilitative alimony to make an effort to work his or her way up to the economic state he or she enjoyed during marriage before a court will entertain an argument for periodic alimony under this section.
Other than the need versus ability to pay factors, the court will also consider the length of marriage, the parties' standard of living during marriage, and the relative fault of the parties in contributing to the breakdown of the marriage.
The stickler remains the subjective nature of what circumstances make it “equitable”. There is still ample power of persuasion given counsel to convince a judge to side with his or her party's equitable need. From the standpoint of counseling clients, this means that once given your day in court, don't expect an appeal's court to take up a trial court's determination of equity without showing an unjustifiably excessive favor towards the needs of one over the other, given the facts entered into evidence. This gives the trial judge a lot of power in pushing the parties to the negotiating table.
Ala. Code §30-2-57(f) details factors a judge can use in determining the equities of the parties:
(f) In determining whether the award of rehabilitative or periodic alimony is equitable, the court shall consider all relevant factors including all of the following:
(1) The length of the marriage.
(2) The standard of living to which the parties became accustomed during the marriage.
(3) The relative fault of the parties for the breakdown of the marriage.
(4) The age and health of the parties.
(5) The future employment prospects of the parties.
(6) The contribution of the one party to the education or earning ability of the other party.
(7) The extent to which one party reduced his or her income or career opportunities for the benefit of the other party or the family.
(8) Excessive or abnormal expenditures, destruction, concealment, or fraudulent disposition of property.
(9) All actual damages and judgments from conduct resulting in criminal conviction of either spouse in which the other spouse or child of the marriage was the victim.
(10) Any other factor the court deems equitable under the circumstances of the case.
Note the catch-all provision in #10.
Section (d) provides factors in determining whether a party has a separate estate sufficient to preserve the economic status quo of the parties during the marriage:
(d) In determining whether a party has a sufficient separate estate to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall consider any and all relevant evidence, including all of the following:
(1) The party's own individual assets.
(2) The marital property received by or awarded to the party.
(3) The liabilities of the party following the distribution of marital property.
(4) The party's own wage-earning capacity, taking into account the age, health, education, and work experience of the party as well as the prevailing economic conditions.
(5) Any benefits that will assist the party in obtaining and maintaining gainful employment.
(6) That the party has primary physical custody of a child of the marriage whose condition or circumstances make it appropriate that the party not be required to seek employment outside the home.
(7) Any other factor the court deems equitable under the circumstances of the case.
Again, the Alabama Legislature gives trial courts a lot of leeway in determining the factors on a case-by-case basis.
Finally, under (e), the statute provides guidance in what factors can be used in determining the ability to pay alimony:
(e) In determining whether the other party has the ability to pay alimony, the court shall consider any and all evidence, including all of the following:
(1) His or her own individual assets, except those assets protected from use for the payment of alimony by federal law.
(2) The marital property received by or awarded to him or her.
(3) His or her liabilities following the distribution of marital property.
(4) His or her net income.
(5) His or her wage-earning ability, considering his or her age, health, education, professional licensing, work history, family commitments, and prevailing economic conditions.
(6) That he or she has primary physical custody of a child of the marriage whose condition or circumstances make it appropriate that he or she not be required to maintain employment outside the home.
(7) Any other factor the court deems equitable under the circumstances of the case.
It should be plain to see that although the State has provided some factors that must be considered, the ultimate power and authority of determining what is fair remains in the hands of the trial judge. And in my experience, this means Alabama courts will continue to make every effort to force the parties to sit down and hash out a settlement rather than sit through days or weeks of testimony. The change in preference towards rehabilitative alimony over periodic alimony may force parties to accept alimony more limited in duration. This change is somewhat subtle, as courts have appeared less apt to routinely award periodic alimony absent a showing that the one seeking it cannot financially stand on his or her own. However, there are always those situations where the courts will seemingly blindly award periodic alimony without seeking any testimony related to the ability of the one seeking it to earn a wage commiserate with maintaining the lifestyle enjoyed during marriage.
At the same time, when one has spent most of the marriage foregoing a career to take on the primary parental responsibilities, courts sometimes seem oblivious to the difficulty in entering the workforce after so many years removed from it.
Another consideration is the removal of the tax deduction of alimony by the one paying it. This may become another factor to consider when a court awards alimony in the future.
One other change to the law relates to retirement benefits. Under the prior law, Ala. Code §30-2-51 contained a requirement that prior to a court dividing retirement benefits, the parties must have been married for 10 years during which the retirement benefits were accruing. That requirement has been removed, giving a court more leeway in awarding retirement benefits for shorter marriages. On the other hand, the Legislature has changed the burden of proving that some or all of the retirement benefits are part of the marital estate, legally presuming that retirement benefits are part of the marital estate and placing the burden of what benefits were excluded from the marital estate on the party seeking to exclude retirement benefits from marital property. Under the prior law, the burden of whether some or all of retirement benefits were part of the marital estate was born by the one trying to include it.
As with any legal entanglement, seeking competent counsel is always wiser than attempting to navigate the legal system on your own. Ritchey Legal can be your armor and sword in protecting your legal rights and interests during what is always an emotionally and financially challenging time. If you are in need of legal assistance, call Ritchey Legal at (205) 225-9225 or email [email protected].