(Division of the Property in Georgia upon divorce comprises three main topics: Division of Personal Property, Division of Real Property and Alimony(Spousal Support). In this Blog #14 we explore Alimony.
What is Alimony in Georgia?
Alimony is payment made by one party to the other after the divorce, either by court order or by mutual agreement. This type of post-divorce payment is also sometimes referred to as spousal support or maintenance. The Georgia Code (OCGA § 19-6-1(a)) defines alimony as “an allowance out of one party’s estate, made for the support of the other party when living separately. It is either temporary or permanent.”
Alimony and Division of Property
Under Georgia law, Alimony is distinctly different from equitable division of property between husband and wife, the latter being an allocation of assets acquired during the marriage to the parties, based on their respective equitable interests in those assets. See, e.g., Stokes v. Stokes, 246 Ga. 765, (1980), which provides numerous examples of the alimony/division of property dichotomy. “It cannot be denied that alimony and equitable property division are not synonymous. Peters v. Peters, 248 Ga. 490(2) (1981). We’ve discussed Division of Property in Blog #13.
Types of Alimony in Georgia
As part of the divorce decree (by agreement in an uncontested divorce, settlement agreement or by award at trial) Alimony in Georgia is generally granted in limited situations. It helps pro se litigants to know that if the case were to go before a judge, the court must first find that one spouse has financial need for alimony and that the other has the ability to pay it. Georgia courts will also consider whether one spouse’s behavior led to the breakdown of the marriage. Typically, if a spouse who otherwise might have received alimony committed adultery or abandoned the other spouse, that spouse may be denied alimony. Where alimony is awarded, Georgia courts do so to ensure economic fairness in divorce, especially where the higher earner, whether husband or the wife, has the means to assist the lower earner with necessary expenses while the spouses come to grips with living apart.
There is no formula for calculating alimony in Georgia; different factors may have more or less weight depending on the overall circumstances of a case. More importantly, a judge has great discretion in deciding what amount of alimony, if any, to award. Informal polling of Superior Court judges in Georgia indicates that there is wide discrepancy between awards and the underlying rationale.
Alimony in Georgia is either “rehabilitative” or “permanent”, i.e., Alimony can be for a short or long period of time. Usually alimony is granted by the court only when a long-term marriage ends.
Rehabilitative alimony is intended to be a short-term measure to enable a spouse to get back on his or her feet, such as completing studies or obtaining a certification that lead to better employment. Usually a spouse who has chosen the role of becoming a homemaker and raising children has not had the time to realize his or her potential for the most productive and gainful employment.
“Permanent Alimony” is long-term, possibly until the death of the party receiving the alimony and is usually awarded when one of the parties is unable to work due to age,and physical or mental illness.
Generally, when alimony is ordered or agreed upon, the higher earning spouse makes periodic (usually monthly) payments to the lower earning spouse. In order to obtain an award of alimony, a recipient spouse must generally prove that they truly need the financial support from their partner and show that their spouse can pay a specific amount as alimony.
Factors that determine the need and ability to pay alimony:
- each spouse’s earning capacity, separate estate, financial resources, and debts
- each spouse’s contributions to the marriage, including homemaking, childcare, education, and career building for the other spouse
- the marital standard of living
- each spouse’s age, and physical and emotional condition
- any time necessary for either spouse to obtain education and training for appropriate employment, and
- the length of the marriage.
See (OCGA § 19-6-1 and OCGA § 19-6-5, Georgia Code (2018 Edition)) for the specific alimony Georgia Statute on point.
FAQs about Alimony in Georgia
- Under Georgia law, married couples are financially responsible for each other: the husband has a duty to support his wifeand the wife has a duty to support her husband. This duty lasts until the final Judgment and Decree of Divorce is granted. It doesn’t stop upon separation.
- There is no formula for calculating alimony in Georgia. The different factors listed in OCGA § 19-6-5above may have more or less weight depending on the overall circumstances of a case. A judge has great discretion in deciding what amount to award, or whether to award any amount at all.
- Generally, Alimony in Georgia is either “rehabilitative” or “permanent”. Thus,Alimony can be for a short or long period of time. Usually alimony is granted by the court only when a long-term marriage (10+ years) ends.
- Rehabilitative Alimony is intended to be a short-term measure to enable a spouse to get back on his or her feet. Thus Alimony is awarded to enable the other spouse to go back to school or acquire a certification that will enable that spouse to secure employment at full potential. Typically, a homemaker raising the children is in this position.
- “Permanent Alimony” continues for a long period of time, possibly until the death of the party receiving the alimony, and is usually awarded when one of the parties is unable to work due to age physical or mental illness.
Modification of Alimony
A party can petition the court to modify the Alimony payment amount if either spouse is able to prove to the court that there has been a significant change in the circumstances since the award of Alimony. Typical cases are when the paying spouse has involuntarily lost their job or if the recipient has gotten one. Generally, alimony will terminate automatically when the recipient remarries or a party dies, unless otherwise agreed to. The court can also sometimes terminate or modify the alimony if it is found that the recipient now has a live-in relationship with someone they’re romantically involved with. This is also referred to as a meretricious relationship. This can be stipulated in an uncontested divorce as well.
Tax Effects of Alimony
For divorce and settlement agreements entered prior to December 31, 2018, periodic alimony payments are usually tax deductible by the payer and taxable to the recipient. Note, however, that almost all lump-sum Alimony payable in installments are treated as property distributions by the IRS, regardless of whether the court or either of the spouses calls the payments Alimony. These payments will not be deductible or taxable for either of the spouses.
For payments required under divorce or separation agreements entered into after December 31, 2018, the Tax Cuts and Jobs Act (TCJA)eliminates the deduction for alimony payments and recipients of alimony payments will no longer have to include them in taxable income.
This TCJA treatment of alimony payments will apply to payments that are required under divorce or separation final orders that are either executed after Dec. 31, 2018, or modified after that date if the modification specifically states that the TCJA treatment of alimony payments applies (not deductible by the payer and not taxable income for the recipient).
Adultery and Alimony (In Georgia)
Adultery in Georgia is defined as the act of one spouse having sexual relations with another person who isn’t their spouse while married. If adultery is proven to be the cause for a divorce in Georgia, the spouse who has been unfaithful could be barred from receiving any alimony. However, if there is forgiveness (the one cheated upon condoned the adultery), then such alimony might not be barred.
Alimony in Georgia is awarded or agreed upon where one spouse needs it and the other can pay for it. The state does not want ex-spouses thrown out on the street. However, we have found that some spouses have unrealistic expectations about Alimony. Although the lifestyle during the marriage is a factor to be considered in assessing need, Alimony is not designed to solve all financial problems. Spouses are generally expected to find employment and support themselves after divorce. Contact The Hughes Law Office for a free consultation 770-933-0780.