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Spousal Support

This section addresses general questions pertaining to spousal support (formerly known as “alimony”). It is not meant to be a complete legal guide. Each case is unique, and your situation may not be covered by this information.

Spousal support is a flexible financial tool for divorcing couples. It offers tax advantages that can help put more cash in the pockets of both spouses.

What is it?

Spousal support is designed to provide the lower-income spouse with money for living expenses. Spousal support is different from child support. Where child support is determined by using guidelines set forth in the Child Support Standards Act, spousal support is very much within the discretion of the judge.

Traditionally, spousal support was awarded to the wife and paid by the husband. However during the 1970's and 1980's judges began to award spousal support to the husband. Spousal support is awarded to either spouse when a spouse is not self-supporting and/or in an effort to maintain the standard of living that both parties were accustomed to during the marriage.

At the time of the divorce if spousal support is awarded it can be one or a combination of the following:

  • Permanent: This type of spousal support is to be paid until either the death of the payor spouse or the remarriage of the recipient. Some agreements may include a "cohabitation" clause that states spousal support ends when the recipient cohabits with another person in the avoidance of marriage.
  • Lump sum: This type of spousal support is one payment of spousal support instead of periodic (usually weekly or monthly) payments. Lump sum spousal support is generally not taxable, so be sure to consult with a CPA experienced in divorce to determine the tax consequences of this type of payment prior to agreeing to it.
  • Temporary/Rehabilitative: This type of spousal support lasts for a specific period of time to allow for the recipient to enter or return to the workforce and become financially self supporting. This type of spousal support may be awarded when there is a short term marriage or in certain circumstances where one person may need financial assistance for a certain number of years in order to "get on their feet".

Can I get it?/Will I have to pay it?

There are several factors a judge considers when deciding whether to grant spousal support. They usually involve things like the parties' relative ability to earn money, both now and in the future; their respective age and health; the length of the marriage, present and future earning capacity of each party, the ability of a party to be self-supporting, the presence of children in the household, tax consequences, wasteful dissipation of marital property, and the standard of living the parties are accustomed to.

Why would I want to pay spousal support?

Spousal maintenance gets treated differently from child support on your tax return. Spousal maintenance is tax deductible to the person who pays it, and included in the taxable income of the person who receives it. Child support, by contrast, is not taxable to the person who receives it and not tax deductible to the person who pays it. That means that when you and your spouse have dramatically different incomes, there may be some tax advantages to using spousal support, even if a judge wouldn't ordinarily award it.

What are the requirements?

In order to constitute spousal support, there are several requirements that you have to satisfy:

  • The payments must be in cash. Checks or money orders are acceptable, but not debt, property, or services.
  • The payments must be provided for in a divorce or a written agreement
  • You can't claim spousal support during any year for which you file a joint tax return.
  • You can't pay spousal support during a time when you and your spouse live in the same residence. Carving out separate quarters in the same residence doesn't count.  Neither do different bedrooms or different wings. You have to live in separate dwellings under different roofs.
  • The payments have to stop when the recipient spouse dies.
  • This isn't really a requirement, but because you can opt out of spousal support treatment, there's a logical provision that if you say it's not spousal support, it's not spousal support.

Generally under the Internal Revenue Code, spousal support can be a tax deduction for the payor spouse when the person receiving spousal maintenance also pays income taxes on the spousal maintenance payment. Under certain circumstances, both parties may agree that the payor spouse will not claim the spousal maintenance as a tax deduction and the recipient's alimony income is not taxed.

You can find more information on the federal tax provisions at the user-friendly IRS website. Also look for Tax Topic 452 or Publication 504 on the IRS website.