alimony | spousal support

Pursuant to Rhode Island Law, a spouse obligation to pay alimony terminates upon the remarriage of the recipient spouse. A property settlement agreement in Rhode Island can specifically state that alimony would continue after remarriage.  I have very rarely seen a Rhode Island Property Settlement Agreement that includes Alimony after a recipient spouse remarriage.

Alimony

The Missouri Court of Appeals determined that “In order to rebut the statutory presumption that maintenance terminates upon the receiving spouse’s remarriage, a dissolution decree must expressly refer to the receiving spouse’s possible future remarriage, and must expressly provide that maintenance payments shall continue beyond that contingency.” (Please note that a State Court Ruling of another state has no binding precedence on Rhode Island Courts) (also review for further information: Kansas City Divorce Attorney Mark Wortman)

Rhode Island alimony (spousal support)

“The defendant’s last claim is that the trial justice’s ruling has left her with no means of support. Alimony is a rehabilitative tool intended to provide temporary support until a spouse is self-sufficient, and is based purely on need. See D’Agostino v. D’Agostino, 463 A.2d 200, 202 (R.I.1983). This Court has stated that in awarding alimony, “[e]arnings [are] but one of a myriad of factors that the trial justice weigh[s] and evaluate[s] * * *. [He] also consider[s] the difference in earning power between plaintiff and defendant and weigh[s] defendant’s needs and circumstances against plaintiff’s ability to pay.” Whited v. Whited, 478 A.2d 567, 570 (R.I.1984). As long as the trial justice considers the statutory elements in § 15-5-16, this Court will not disturb the award or lack of award of alimony. The trial justice explicitly found that based on the weekly needs of plaintiff and the children, and plaintiff’s obligation to repair the marital domicile, plaintiff had no present capacity to pay alimony. Additionally, there was evidence that defendant had worked throughout the marriage as a bus driver, and had some advanced training as a medical assistant.” 749 A.2d 577 (2000) Michael J. BERARD v. Patricia A. BERARD. .Supreme Court of Rhode Island. April 28, 2000.  Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ. Marc B. Press, Lise M. Iwon, Wakefield, for plaintiff. Patricia J. Berard Pro Se. OPINION PER CURIAM.

FAQS concerning RI Spousal Support: who Qualifies for alimony? What factors must a Family Court Judge Look at to whether a litigant qualifies?

Rhode Island alimony law

Alimony is payments that one spouse may be ordered to pay another spouse for support as a result of a divorce.  Some spouses qualify for alimony. Spousal Support is also known as Alimony or Spousal Maintenance.

R.I.G.L 15-5-16 sets forth the factors that a Providence Family Court Judge should use in determining whether a husband or wife qualifies for Spousal Support.

Rehabilitative alimony in RI

The RI Supreme Court Stated “Alimony is a rehabilitative tool intended to provide temporary support until a spouse is self-sufficient, and is based purely on need.” Berard v. Berard 

The Rhode Island alimony statute is set forth below. “alimony should be ‘payable for a short, but specific and terminable period of time, which will cease when the recipient is, in the exercise of reasonable efforts, in a position of self-support.'” Thompson v. Thompson

The intent of alimony is rehabilitative in nature. “alimony should be ‘payable for a short, but specific and terminable period of time, which will cease when the recipient is, in the exercise of reasonable efforts, in a position of self-support.'” Id.

RI not well regarded for generous awards

Rhode Island is not well regarded as a state that is generous in awarding alimony. RI’s neighbor, Massachusetts, is known as a state that is very generous in its alimony determinations despite recent laws in Mass. limiting permanent alimony. The primary reason for this is the “rehabilitative” nature of alimony in RI. RI is not an income equalization state!

Generally, alimony is awarded for a period of time, in increments which are usually weekly or monthly. Alimony could be awarded as a result of a Divorce settlement. If a party requests alimony or is unwilling to waive alimony and the parties cannot agree to an alimony award, then alimony may be awarded at the divorce trial.

Temporary alimony in Providence Family Court

Temporary alimony may be awarded by the Family Court towards the beginning of the divorce case. This temporary alimony award will stay in effect until the final decision by the judge at the Trial. (unless it is modified based on a substantial change in circumstances) Alimony is usually awarded on a temporary basis but can be awarded on an indefinite and (perhaps what turns out to be permanent) basis if the facts justify indefinite alimony. The Rhode Island Supreme Court ruled that “Alimony may be awarded even for an indefinite period as long as the trial justice considers all the statutory factors.”

Permanent alimony allowed in Rhode Island?

Indefinite alimony may be ordered in a case where a party is seriously disabled or as a result of old age is unable to work. Indefinite alimony could also be awarded in a plethora of different factual circumstances.

The Court must look at “The health, age, station, occupation, amount and source of income, vocational skills and employ-ability of the party’s in making a spousal support award.”  Ability to pay is a crucial factor in determining the amount of alimony and whether alimony should be awarded. There are many cases in which a spouse is in desperate need of alimony, but the other spouse does not have the ability to pay alimony. In some cases, the spouse does not have an ability to pay because of a child support obligation to the other spouse or child support owed for other children.

Furthermore, according to The Rhode Island Supreme Court, “Section 15-5-16 does not explicitly prohibit one lump-sum award.” However, lump sum award alimony appears to be disfavored.

Who are the best candidates for an alimony award?

The best candidate for alimony is a spouse who put aside his or her career ambitions for many years to be a homemaker and care for the children. As a result of the role of nurturing the children and establishing and maintaining a home, the other spouse was able to advance his or her career in order to be able to afford to pay alimony.

In some cases, the family decided that one parent would put aside his or her career aspirations to raise a child or minor children. As a result, the homemaker’s skill set is so outmoded that he or she is unable to obtain suitable employment. This is usually because the homemaker’s job skills, employment history, licenses, training, skills, experience or degrees became outmoded or irrelevant. Perhaps the person does not have enough of an employment history to be able to be self-supporting and self-sufficient without receiving alimony. In some cases, the spouse is unable to work because the spouse currently has a physical custody and placement of a young child.

For this type of person, the intent of an award of Rehabilitative Alimony would be to allow a person to build a work history, advance his or her education, employment training, licenses etc. so that the person can be self-supporting and self-sufficient in the future.

The disabled

Another type of person who is an excellent candidate for alimony is a person who is temporarily disabled or permanently disabled especially if the marriage has been a long marriage. Another good candidate for alimony is a spouse who has severely disabled children which renders it difficult or impossible for the person to seek employment.

“The assignment of property must precede any determination of alimony because the needs of each party will be affected by the equitable distribution of the marital estate. Section 15-5-16.1(c). In determining the amount of alimony, the court must consider: “(i) [t]he length of the marriage; (ii) [t]he conduct of the parties during the marriage; (iii) [t]he health, age, station, occupation, amount and source of income, vocational skills, and employability of the parties; and (iv) [t]he state and the liabilities and needs of each of the parties.” Section15-5-16(b)(1).6

Child support and alimony

Child Custody and Placement plays a role in an alimony determination. If the parties have children, the Court must also make an award of Child Support before the Court determines an alimony award.  The child support award plays a large role in determining the resources of the parent with physical custody of the minor child. A child support order may severely affect an individuals ability to afford alimony in the future.

The needs and expenses of both parties is crucial in determining alimony

Needs and expenses are intertwined with the standard of living of the parties. The Court may look at the following types of expenses and needs: rent, mortgage, taxes, insurance, food, health insurance, uninsured medical expenses, prescription expenses, dental expenses, cable, internet, utilities, heat, gas, vehicle expenses etc.

Conduct such as affairs not really relevant

Although conduct is a factor in alimony determinations per the RI Alimony Statute, it is not a significant factor since alimony is primarily based on need. Conduct such as an affair, drug or alcohol addiction, gambling problem, domestic violence plays more of a role in equitable division of assets then in an Alimony determination.

Federal income tax implications

An award of alimony no longer has Federal Income Tax consequences. Alimony is not taxable to the spouse who receives the alimony and is not deductible by the spouse who pays alimony. Payment of alimony is NOT a taxable event  Payment of child support is, also, a non-taxable event. The parent who pays child support is not entitled to a deduction for payment and the receiving spouse does not include the payment as income. Therefore, it is tax free money to the parent who receives the child support. 26 U.S.C.A. 71.

The designation of payments as alimony rather than property distribution has consequences in Bankruptcy Proceedings. An alimony award is generally not dischargeable in Bankruptcy. The interrelation between family law, alimony and bankruptcy is also beyond the scope of this article. Please consult with a RI Bankruptcy Lawyer / Attorney.

Modify alimony?

Another important issue, perhaps crucial issue, is whether or not the parties entered into a property settlement agreement in the divorce.  In order for the alimony to be completely non-modifiable, the alimony must be agreed to in a Property settlement agreement. A property settlement agreement is otherwise known as a marital settlement agreement. (MSA) The Court has no power to modify a property settlement agreement. A Court can only enforce or interpret a property settlement agreement. In the event of impossibility of payment, the Court could award equitable relief, equitably reforming the contract between the parties.  Please contact a Rhode Island divorce attorney concerning whether or not it is advisable to draft a Property Settlement agreement in your case.

Proper drafting of a Property Settlement Agreement and Alimony provisions in a Property Settlement Agreement is beyond the scope of this article.

The length of the marriage is a very important factor that the RI Family Court Judge looks at in determining Alimony. The Court also needs to hear testimony concerning the party requesting alimony plan to become self-supporting and self-sufficient.

The Court can also look at the relative ability of both spouses to earn income and or acquire assets and property in the future

If a person is ordered to pay alimony and does not pay alimony, the other person can file a contempt motion. If a person is found in willful contempt of a Court order, he could be jailed until they purge themselves of the contempt. Rhode Island Family Court judges take failure to comply with their alimony orders very seriously. If the alimony award is modifiable, either party could file a motion to modify the alimony based on a substantial change in circumstances.

• 15-5-16 Alimony and counsel fees – Custody of children.

(a) In granting any petition for divorce, divorce from bed and board, or relief without the commencement of divorce proceedings, the family court may order either of the parties to pay alimony or counsel fees, or both, to the other.

(b) In determining the amount of alimony or counsel fees, if any, to be paid, the court, after hearing the witnesses, if any, of each party, shall consider:

(i) The length of the marriage;

(ii) The conduct of the parties during the marriage;

(iii) The health, age, station, occupation, amount and source of income, vocational skills, and employability of the parties; and

(iv) The state and the liabilities and needs of each of the parties.

(2) In addition, the court shall consider:

(i) The extent to which either party is unable to support herself or himself adequately because that party is the primary physical custodian of a child whose age, condition, or circumstances make it appropriate that the parent not seek employment outside the home, or seek only part-time or flexible-hour employment outside the home;

(ii) The extent to which either party is unable to support herself or himself adequately with consideration given to:

(A) The extent to which a party was absent from employment while fulfilling homemaking responsibilities, and the extent to which any education, skills, or experience of that party have become outmoded and his or her earning capacity diminished;

(B) The time and expense required for the supported spouse to acquire the appropriate education or training to develop marketable skills and find appropriate employment;

(C) The probability, given a party’s age and skills, of completing education or training and becoming self-supporting;

(D) The standard of living during the marriage;

(E) The opportunity of either party for future acquisition of capital assets and income;

(F) The ability to pay of the supporting spouse, taking into account the supporting spouse’s earning capacity, earned and unearned income, assets, debts, and standard of living;

(G) Any other factor which the court expressly finds to be just and proper.

(c) For the purposes of this section, “alimony” is construed as payments for the support or maintenance of either the husband or the wife.

(2) Alimony is designed to provide support for a spouse for a reasonable length of time to enable the recipient to become financially independent and self-sufficient. However, the court may award alimony for an indefinite period of time when it is appropriate in the discretion of the court based upon the factors set forth in subdivision (b)(2)(ii)(B). After a decree for alimony has been entered, the court may from time to time upon the petition of either party review and alter its decree relative to the amount and payment of the alimony, and may make any decree relative to it which it might have made in the original suit. The decree may be made retroactive in the court’s discretion to the date that the court finds that a substantial change in circumstances has occurred; provided, the court shall set forth in its decision the specific findings of fact which show a substantial change in circumstances and upon which findings of facts the court has decided to make the decree retroactive. Nothing provided in this section shall affect the power of the court as subsequently provided by law to alter, amend, or annul any order of alimony previously entered. Upon the remarriage of the spouse who is receiving alimony, the obligation to pay alimony shall automatically terminate at once.”

Can a woman be ordered to pay alimony in Rhode Island?

Yes. Absolutely. The same Rhode Island Alimony Laws apply to a woman’s potential obligation to pay alimony that apply for a man. However, under the old common Law it was only a husband who had a legal obligation to support his wife. Those were very different times because woman were not allowed to own any property. Also, there was no absolute divorce in those days.

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