Alimony & Property Division

Alimony (or spousal support, as it is often referred to nowadays) is money that one spouse pays to help support the other after a divorce or separation has been filed. This may well be the single most sensitive issue that we handle as divorce lawyers. Both those who are forced to pay alimony and those who receive less than they feel they deserve are equally resentful. And because of its nature (generally as an ongoing monthly payment), alimony remains an open wound between spouses for years — and the scab gets torn off monthly.

For our purposes, it should be enough to try to understand the concept of alimony, without all the emotion. Simply put, either the divorcing spouses must agree (or else the Court will decide) whether spousal support should be paid, who will pay it, how much it will be and how long it will last. But the Court does not order spousal support in every case. In fact, nowadays alimony is not a part of the majority of divorce settlements.

Often the length of the marriage will be a key factor in determining spousal support. If it was a relatively long marriage or if one spouse is older and has never worked outside the home, the court may decide that his or her chances of finding a decent job are limited. This spouse might receive spousal support for life or until they remarry. Suppose one spouse is young, but has never worked outside the home. The Court may say this spouse should receive spousal support for a limited time — perhaps until they either are self-supporting, completes an educational program or receive training for a job. Now suppose both you and your spouse have decent jobs. In this case, the Court may well say that neither of you is entitled to spousal support.

So who gets alimony, anyway? Here is a short list of factors to be considered with regard to alimony: (1) each party's earning capacity; (2) the parties' respective ages and physical and mental health; (3) the parties' standard of living during the marriage; (4) the work experience, vocational skills and educational levels of the dependent spouse; (5) the earning capacity and the ability of the payor spouse to make alimony payments; (6) the length of the marriage; and (7) the needs of both parties.

The court will consider the situation of both spouses in terms of separate and marital property, debts, age, health and standard of living. It also will consider any special needs each has, whether one has custody of minor children, the amount of money each spouse can be expected to earn, and the length of time it will take an unemployed spouse to train for a job and to find one.

It is important to remember that federal and state income taxes must be paid by the recipient on any spousal support payments received. Conversely, spousal support payments are tax-deductible to the payer. It is important to note that whereas property and debt settlement divisions can be discharged in bankruptcy, spousal support awards generally cannot be. Finally, a custodial parent who receives alimony may get a reduced level of child support.


Hawaii has adopted a form of equitable distribution principles with regard to property settlements . The remaining eight states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas and Washington) apply community property statutes.

Community property basically means that everything acquired during the marriage belongs to both spouses equally. Thus, the most hardline community property states (California, Louisiana and New Mexico) require by statute that property be divided in an exact and mandatory half-half fashion. Equitable distribution makes a similar presumption that any and all property acquired by the spouses during their marriage is marital property and hence subject to division. The difference is that the Courts in these jurisdictions don't always divide everything exactly evenly. Instead, judges in equitable division jurisdictions are authorized to divide things unevenly if necessary in order to achieve what they view as an equitable result.

Equitable versus equal. Equity is a slippery concept, but one that the American judicial system attempts to quantify as a serious and specific legal doctrine. Perhaps it can be most simply stated as striving to achieve a general sense of fair play. Thus, if a judge feels the need to deviate from an exact 50-50 split in order to arrive at a result that is fair and equitable in a particular case, then that Judge has the ability to do so.

It is important to understand that equitable distribution principles still generally start at a basic 50-50 analysis for property distribution, in much the same way that a community property approach does. The key difference is that judges in Hawaii and other equitable distribution states are not absolutely bound to follow an exactly even split the way they would be in community property states. Judges in equitable distribution jurisdictions have the ability to switch to a 40 percent to husband and 60 percent to wife (or vice versa) distribution of the marital assets, or even 70 percent to wife and 30 percent to husband, or whatever they feel is appropriate. If the Court does deviate from the basic 50-50 split, generally the judge will explain why.

Criteria that count. Some of the factors a Court might consider in making an equitable distribution of a couple's assets include: (1) the length of the marriage; (2) the respective conditions in which each side will be left following the divorce; (3) the nature of the various property items (inherited, separate or premarital property may be treated differently from that accumulated during marriage and will often be returned to the spouse who was the original owner); (4) the responsibilities each party had during the marriage (including their respective economic and noneconomic contributions); (5) whether there are children and who they will be living with; (6) the respective health and education levels of both parties; (7) dissipation of any assets during the marriage; and (8) the relative abilities and earning potentials of the parties.