Chapter VIII
SUPPORT ALIMONY
A note of caution: Changes in divorce law are constant and can occur at any time either through new legislation or new state or federal court decisions. Each year, many such changes will occur. Your best and most current information will come from a lawyer who is competent in divorce practice and who keeps abreast of such changes and who is familiar with your own particular marital history.
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Types of spousal support Legal considerations Characteristics
Initial definiteness Modification, economic change Modification, cohabitation
Termination on death Termination on remarriage Tax consequences
Bankruptcy survivability Lien Health insurance Life insurance
Support for an ex-spouse at the time of divorce can take various forms. Whatever the form used, spousal support orders are distinguishable from marital estate division orders in their purpose. See Chapter 7, Property Division Alimony. Orders in the latter category are for the purpose of dividing the marital estate. Spousal support orders are made for the purpose of supporting a spouse before or after the divorce is granted.
Except in very unusual circumstances, when marital partners divorce, if they have accumulated any property and debt, it will be divided. If they have minor children, the court will almost always enter orders for their custody, visitation and support.
Spousal support orders, on the other hand, occur far less frequently. It is easily safe to say that support alimony orders are made in less than one-half of all contemporary divorce cases.
Oklahoma statutes presently provide little objective guidance in describing (a) when support alimony awards are appropriate; (b) how much should be awarded; or (c) how long it should continue. In the absence of such guidance, and recalling the trial court's wide discretion, a request for spousal support is often the most contentious and unpredictable issue to be decided in the case.
Types of Spousal Support Top of Chapter
Four types of spousal support orders are:
(1) An immediate award of the other spouse's property for the purpose of support, called an "in kind" award (which occurs infrequently);
(2) Debt payment orders directed to one spouse for the purpose of supporting the other (i.e., ordering one spouse to pay a creditor, not for the purpose of effecting property division, but for the purpose of indirect support for the other spouse);
(3) Support alimony to be made in periodic payments at defined future times, which is the typical form of support alimony; and
(4) attorney fee orders resulting from the divorce litigation.
This Chapter is particularly concerned with "support alimony" orders which provide for periodic payment of money for support of an ex-spouse upon divorce.
Legal Considerations Top of Chapter
Either spouse may be awarded support alimony under the law. In practice, however, an award of support alimony to a husband is almost unknown. Oklahoma appellate case law has, on a case by case basis, identified quite a number of factors which a trial court may properly consider in resolving a spouse's claim for support alimony.
The list includes the following: husband's future earning capacity; his present ability to pay; whether the marriage was one of affection or convenience; his earning capacity; wife's condition and means; duration of marriage and age of parties; wife's health; wife's opportunity for employment; wife's ability to obtain gainful employment; mode of living to which the parties were accustomed; probability of the husband's ability to progress financially; earning capacity of the wife; her ability to earn a living before marriage; age of children and need to maintain a home for them; and fault.
Concerning "fault," some cases teach that alimony should not be awarded or withheld to penalize an errant spouse. Other cases which describe fault as a factor in resolving the issue have not been explained or overruled. In the absence of such resolution, evidence concerning fault often finds its way into the trial, even though it is usually of doubtful value.
Contemporary appellate case law seems to emphasize two factors as having threshold importance, and in this order -- (1) the financial need of the intended recipient; and (2) the financial ability of the intended obligor to pay.
In other words, if a wife does not demonstrate that after divorce she will have a financial need for support (taking into account her income, her ability to earn income, child support payments and other economic resources), she will not likely be entitled to receive an award of support alimony, even if the husband has the ability to pay it. And, even if the wife establishes her "need" case, if the husband's ability to pay support alimony is not proven, it is unlikely that the court will order him to pay any.
Beyond these two principal factors, two others are often of considerable importance -- (3) length of the marriage; and (4) economic standard of living during marriage.
The shorter the marriage, the less likely it is that support alimony will be awarded; and, if it is awarded, it will likely be of short duration and small in total amount. In an exceptionally short marriage, length of marriage may be of greater importance than any other factor. For example, in a marriage which has lasted only six months, it would be unrealistic to expect that the trial court would take seriously any request for support alimony except in the most unusual of circumstances.
Economic standard of living during marriage is important since a family's history provides much information concerning what "needs" might be. "Need" is a term which is relative to the parties' circumstances and may include much more than basic subsistence and survival requirements.
Characteristics Top of Chapter
The law which pertains to support alimony is not static and change can occur at most any time. The following characteristics presently exist:
Initial Definiteness Top of Chapter
The initial award of support alimony must be completely calculable as to the total obligation in terms of amount and time and an award which does not meet these requirements is "voidable". Good and unresolved arguments exist, however, that this initial definiteness attribute should no longer be required. In those instances that an indefinite support alimony award is determined to be invalid, the issue as to entry of a proper order is then ripe for litigation.
An award which provides for support alimony for $500 per month for sixty months will meet the definiteness requirement; but an award which provides for support alimony for $500 per month until the wife dies or remarries will not pass legal muster. Concerning agreed decrees providing for indefinite support alimony awards, See Chapter 10, Extrajurisdictional Agreements.
Modification For Economic Change Top of Chapter
Under existing law, a support alimony award may be modified because of substantial economic change of the parties. The current statute says that change may occur, "upon proof of changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the original terms of the decree unreasonable to either party." Modification of support alimony award because of economic change has only been possible since 1983. In 1992, the statute was amended to provide that alimony could be increased or decreased as to both duration of the obligation and the monthly amount. Generally, it is easier to modify child support than support alimony because of the "substantial and continuing" language in the quoted alimony statute. And, be aware that once a support alimony order has run its course - that no payments remain to accrue - a party may not then apply to the court for additional support. Modification is possible only if the term of the existing order has not expired.
Modification For Cohabitation Top of Chapter
Even if not married, a support alimony recipient's "dwelling together continuously and habitually" in a "private conjugal relationship" with a person of the opposite gender is a legal basis for the payor to request modification or termination of the award. Case law emphasizes that proof of such cohabitation, by itself, does not prove the modification case - it must be shown that the cohabitation arrangement has lessened the recipient's need for support. And, notice that cohabitation is linked with a person of the "opposite gender."
Termination Upon Death Top of Chapter
Unless the parties have agreed differently, the obligation to pay support alimony ceases as to payments which have not accrued at the time of the death of the recipient or upon the death of the payor. Although the statute only addresses the death of the recipient, Oklahoma case law has determined the support alimony obligation to terminate upon the payor's death, as well. As to the possibility of the parties agreeing around this legal requirement, see Chapter 10, Extrajurisdictional Agreements.
Termination Upon Remarriage Top of Chapter
Remarriage of the payor does not generally affect the obligation for support alimony payments (although, arguably, the attendant circumstances may give rise to a modification because of change of economic circumstances). However, the recipient's remarriage results in termination of entitlement, unless the recipient promptly (within 90 days of remarriage) applies to the court for continuation of support and proves that continued payments remain needed after remarriage.
Income Taxation Consequences Top of Chapter
Generally, periodic support alimony payments are deductible from the income of the payor and are includable in the income of the recipient, for income taxation purposes.
Bankruptcy Survivability Top of Chapter
Unlike property division alimony payments, the payor's obligation to make support alimony payments is not usually affected by the bankruptcy of the obligor. For further discussion, see Chapter 7, Marital Estate Division, Effect of Bankruptcy. However, it would be a mistake to assume that support alimony is totally protected from bankruptcy discharge - federal bankruptcy courts have the power to "interpret" divorce decrees in accordance with federal standards. Just because a divorce decree calls something "support alimony" will not prevent the bankruptcy court from deciding that, in fact, it isn't. However, this occurs infrequently.
Lien Top of Chapter
The divorce court has the power to secure the payment of support alimony by awarding a lien upon the real property of the obligor. However, unless such a lien is ordered, it does not generally exist concerning unaccrued payments. And, if not originally secured by such a lien, accrued and unpaid amounts could not be a lien against the property of the obligor unless the arrearage were reduced to a judgment in a post-divorce court proceeding.
Health Insurance Top of Chapter
Generally, health insurance companies will provide health insurance only for their insureds or their dependents. Therefore, since one ex-spouse is not the legal dependent of the other, one ex-spouse cannot be covered under the health insurance policy of the other ex-spouse, upon their divorce. However, concerning the possibility of obtaining continued health insurance coverage by the issuance of a new policy with the same insurer in certain situations, see Chapter 14, Other Matters, COBRA.
Life Insurance Top of Chapter
In the absence of the parties' agreement, the court probably does not have the power to require the payor to maintain life insurance to protect the full amount of a support alimony award. However, an order limited to life insurance to protect unpaid and accrued monthly payments through the date of payor's death may be within the court's power. Recall that, under Oklahoma law, an obligation to pay support alimony concludes upon the death of either party - and, so, an order to pay for life insurance to protect the full amount of the original award would apparently be inconsistent with such law. But, once again, see Chapter 10, Extrajurisdictional Agreements.
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