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Alimony, also called aliment (Scotland), maintenance (England, Republic of Ireland, Northern Ireland, Wales, Canada, New Zealand), spousal support (U.S., Canada) and spouse maintenance (Australia), 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.
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.
Some countries are replacing alimony that maintain a spouse's standard of living with rehabilitative alimony.
Unless the parties agree on the terms of their divorce in a binding written legal 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.
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:
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:
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 (6) states that there are four objectives of spousal support orders:
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."
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.
Under traditional English common law, a woman gave up her personal property rights on marriage (see Coverture). Upon separation from marriage, the husband retained the right to the wife's property, but, in exchange, had an ongoing responsibility to support the wife after dissolution of the marriage. English law was amended by legislation including the Married Women's Property Act 1870 and Married Women's Property Act 1882 which reformed women's property rights relating to marriage, by, for example, permitting divorced women to regain the property they owned before marriage.
Hindus: Governed by the Hindu Marriage Act, 1955 (Section 24 for pendente lite, Section 25 for permanent alimony).
Christians: Governed by the Divorce Act, 1869 (Section 36 for pendente lite, Section 37 for permanent alimony).
Parsis: Governed by the Parsi Marriage and Divorce Act (Section 39 for pendente lite, Section 40 for permanent alimony).
Secular: Special Marriage Act, 1954 (Section 36 for pendente lite, Section 37 for permanent alimony).
In case of dissolution of the marriage, art. 5, paragraph 6, of Law 898/1970 provides for the obligation for a spouse to periodically provide the other with a check "when the latter does not have adequate means or in any case cannot obtain them for objective reasons", the determination of which it is entrusted to certain specific parameters (conditions of the spouses, reasons for the decision, personal and economic contribution given by each to the family management and to the formation of the patrimony of each or the common one, income of both, duration of marriage).F. Salerno, Il diritto giurisprudenziale in materia di assegno di mantenimento nello scioglimento del matrimonio e dell’unione civile, in Rivista di Diritto Civile, 2021, pp. 187-203
The determination of alimony varies greatly from state to state within the U.S. Some state statutes, including those of Texas, Montana, Kansas, Utah, Kentucky and Maine, give explicit guidelines to judges on the amount and/or duration of alimony. In Texas, Mississippi and Tennessee, for example, alimony is awarded only in cases of marriage or civil union of ten years or longer and the payments are limited to three years unless there are special, extenuating circumstances.
In Texas, there is a legal presumption that alimony is not appropriate. Only after the requesting spouse can reasonably demonstrate that they have given the best effort in good faith to secure an independent income but failed is a petition for alimony taken into consideration. The amount of spousal support in that may be awarded is limited to the lesser of $5,000 per month or 20% of the payee's gross income.
Some states, including California, Nevada and New York, have spousal support statutes that list factors that a judge should consider when determining alimony. In these states, the determination of duration and amount of alimony is left to the discretion of the family court judges as limited by legal precedent. In 2012, Massachusetts enacted alimony reform that set limits on alimony and eliminated lifetime alimony. In 2013, Colorado signed into law alimony reform, creating a standardized non-presumptive guideline upon which courts can rely.
In general, there are four types of alimony:ABA (1996), " Alimony/Maintenance", in
Some of the possible factors that bear on the amount and duration of the support are:
| Length of the marriage or civil union | Generally, alimony lasts for a term or period. However, it will last longer if the marriage or civil union lasted longer. A marriage or civil union of over 10 years is often a candidate for permanent alimony. |
| Time separated while still married | In some U.S. states, separation is a triggering event, recognized as the end of the term of the marriage. Other U.S. states do not recognize separation or legal separation. In a state not recognizing separation, a 2-year marriage followed by an 8-year separation will generally be treated like a 10-year marriage. |
| Age of the parties at the time of the divorce | Generally, more youthful spouses are considered to be more able to 'get on' with their lives, and therefore thought to require shorter periods of support. |
| Relative income of the parties | In U.S. states that recognize a right of the spouses to live 'according to the means to which they have become accustomed', alimony attempts to adjust the incomes of the spouses so that they are able to approximate, as best possible, their prior lifestyle. |
| Future financial prospects of the parties | A spouse who is going to realize significant income in the future is likely to have to pay higher alimony than one who is not. |
| Health of the parties | Poor health goes towards need, and potentially an inability to support oneself. The courts are disinclined to leave one party indigent. |
| Fault in marital breakdown | In U.S. states where fault is recognized, fault can significantly affect alimony, increasing, reducing or even nullifying it. Many U.S. states are 'no-fault' states, where one does not have to show fault to get divorced. No-fault divorce spares the spouses the acrimony of the 'fault' processes, and closes the eyes of the court to any and all improper spousal behavior. In Georgia, however, a person who has an affair that causes the divorce is not entitled to alimony. |
California is the only state with a law that requires that the parties be represented by counsel if spousal support (alimony) is limited by the agreement.See subsection (c) of California Family Code, Sec 612.
Instead of a complete waiver of the right to seek alimony, prenuptial agreements and post-nuptial agreements can also contain terms where the parties agree to a set amount of guaranteed alimony for the lower wage earner at the time of divorce, or a cap/limit on the amount of alimony either party can seek in the event of a divorce.
Some states (e.g. Florida, Texas, Maine) are moving away from permanent alimony awards that are intended to maintain a spouse's standard of living enjoyed during the marriage and are moving towards durational or rehabilitative alimony. In other states, like Mississippi and Tennessee, alimony is usually awarded for life.
Some of the critical issues that proponents and opponents of alimony reform disagree upon are:
In 2012, bills were introduced in the New Jersey Assembly and Senate. The Assembly passed a bill calling for a Blue Ribbon Commission to address Alimony Reform. The Senate has a similar bill pending that has not yet been posted in the Judiciary Committee. The NJ Matrimonial Bar Association has been vehemently fighting against Alimony Reform, led by Patrick Judge Jr. chairman of the Family Law section of the New Jersey State Bar Association. Attorney Judge stated that the New Jersey State Bar Association ("NJSBA") objected to the inclusion of individuals with a vested interest in reforming alimony on the Blue Ribbon Commission and that the NJSBA supported the "establishment of a commission to but only as long as the commission is constituted so that a fair and unbiased review of the current alimony laws takes place…and should not be predisposed to an outcome…."
In 2023 Florida passed an alimony reform bill (SB 1416) which eliminated permanent alimony and established a process for allowing alimony payers to request modifications when they want to retire. The bill allowed judges to reduce or terminate alimony obligations based on a number of factors. The passage came after decades of contentious debate garnering three vetoes of similar bills. Some groups that were previously major opponents of the reform approved of the 2023 policy, such as Florida Family Fairness and The Florida Bar.
California, Connecticut, Georgia, Illinois, Oklahoma, New York, South Carolina, Tennessee, Utah, and West Virginia have all passed laws that allow for the modification or termination of alimony upon demonstration that the recipient is cohabitating with another person. In April 2009, the Governor of New Jersey, Jon Corzine, signed into law changes in the alimony statutes for his state which would bar alimony payments to parents who kill, abuse, or abandon their children.
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