An element that may be decided upon a divorce or separation is whether or not a party will be awarded alimony. Alimony is defined as an allowance out of one party’s estate that is made for the support of the other party when the two are living separately. It can be awarded on a temporary basis or permanently. There are certain situations in which permanent alimony can be granted, such as:
- In case of divorce;
- In cases of voluntary separation; or
- When one spouse is abandoned or driven off by the other spouse against his or her will.
If any of the above situations exist, the court will then determine if alimony should be awarded. A court will first look to whether or not a valid prenuptial agreement exists that sets forth the terms for alimony. The amount of alimony and the length of time that it will be awarded are issues that are commonly addressed within a prenuptial agreement. If the elements of a valid prenuptial agreement are met, then the terms providing for alimony will stand and both parties will be bound by them.
However, if a prenuptial agreement is either not in place, does not provide for alimony, or is not valid, the judge will make the final decision. In determining whether alimony will be awarded and the amount to be awarded, the court looks to the needs of the party and the ability of the other party to pay. Factors a judge will consider include the following:
- The standard of living established during the marriage;
- The duration of the marriage;
- The age, physical, and emotional condition of both parties;
- The financial resources of both parties;
- If it applies, the time necessary for either party to acquire sufficient education or training needed to find appropriate employment;
- The contribution of each party to the marriage, such as services rendered in homemaking, child care, education, and career building of the other party; and
- The condition of the parties, such as separate estate, earning capacity and fixed liabilities.
There are instances in which alimony will not be awarded regardless of the needs of the party seeking it. Under Georgia law, a party will not be entitled to alimony if it is established by a preponderance of the evidence that the separation between the parties was caused by that party’s adultery or desertion. Therefore, even though one or both parties may also be seeking a divorce, the court should receive evidence of the factual causes of the separation regardless of the grounds upon which the divorce is sought.
Lastly even if permanent alimony is awarded, it will terminate upon remarriage of the party who has been awarded the alimony. This constraint clearly introduces another element that must be considered when deciding to enter into a new marriage.
The attorneys at Vayman & Teitelbaum are well versed in the area of alimony. Whether a party is asking for alimony or wishing that alimony not be awarded, our experienced attorneys will advocate for your needs.