Who Qualifies for Alimony These Days?

bride figure on top of pile of dollar bills — The word alimony comes from the Latin term for "nourishment" and roughly translates to "eating money." Peter Dazeley/Getty Images

Alimony, also known as spousal support or spousal maintenance, is often the ugliest sticking point in a contentious divorce proceeding. "Alimony triggers a lot of emotion and it's hotly contested, meaning couples do go to court and have full-on battles over it," says Lina Guillen, a trial attorney and editor at Nolo.

The word alimony comes from the Latin term for "nourishment" and roughly translates to "eating money." The concept originated in England at a time when divorce did not exist and so the husband was legally obligated to support his wife when the two separated because they were still married.

In the United States, each state has its own alimony statutes authorizing a nonworking or lower-earning spouse to request alimony payments from the higher-earning ex-partner. But the rules and conditions of who qualifies for alimony, and how much they're entitled to, differ from state to state.

"The basic question is, does one spouse have a financial need for support and does the other spouse have the ability to pay?" says Guillen. "When alimony is awarded, there's usually a big discrepancy between the spouses' income and assets."

Note that alimony is separate and distinct from child support. While children and parental responsibilities can play into the rewarding of alimony — for example, if one spouse is unable to work while raising young children — child support is exclusively for the well-being of the child. Both federal and state governments take an active role in enforcing child support payments, because non-compliance usually means more families in need of government support. No such enforcement mechanisms exist for alimony.

How Do You Get Alimony?

Again, each state has its own specific rules for who qualifies for alimony, but Guillen says that there's a lot of common ground.

For starters, you have to be married to qualify for alimony. If you never got married, but still lived with a romantic partner for years and years, you could qualify for something called palimony (a playful contraction of "pal" and "alimony") in a handful of states.

The length of the marriage is also important. Really short marriages of a year or less are very unlikely to qualify for alimony, since there probably wasn't enough time for one spouse to grow financially dependent on the other. The longer the marriage, the more likely that there's an imbalance in earnings.

"It's really a case-by-case basis, but the shorter the marriage, the lower probability of getting any alimony," says Guillen. "I'd say a five-year marriage with kids, if one of the parties stopped working or took a lot of time off to help with two young kids, there's probably going to be some spousal support until that person can get back into the job market."

At issue in every alimony case is the financial situation of both spouses. Whether alimony payments are decided by a mediator or a judge, they will ask for detailed financial records — bank accounts, paystubs, assets and debts — to determine if one spouse is going to be in dire financial straits after the divorce and how much the other can afford to contribute.

Part of that calculation is something called the "marital standard of living," a benchmark of how the couple was accustomed to living while married. Did they live in a three-bedroom home with two cars and a yearly vacation to Florida? Or a mansion with servants and a private yacht? While judges aren't going to guarantee the same standard of living to both ex-spouses, they're not going to allow the higher-earning spouse to live in luxury while the lower earner is on welfare, says Guillen.

Lastly, a court is going to look at whether one spouse sacrificed higher earnings or an entire career in order to support the other spouse's ability to work or go to finish grad school. This is why Guillen cited the example of a couple with two kids as the standard recipe for alimony. When the kids were born, one spouse left the job market to stay home so the other could keep working. Historically, this was the woman's role, which is why most alimony payments have traditionally gone to women rather than men. But that's starting to change.

In the 1979 case Orr v. Orr, the Alabama Supreme Court ruled that Alabama's alimony statute, which limited alimony payments to women, was unconstitutional. Decades later, the number of men receiving alimony from their ex-wives is still relatively low — just 3 percent of 400,000 alimony payments according to the 2010 census — but with women now the primary breadwinners in 40 percent of households, the trend is shifting toward more men qualifying for alimony. Alimony payments are become rarer in general, dropping from 25 percent of all divorce cases in the 1960s to just 10 percent in 2015, according to Reuters.

Types of Alimony

Not every state recognizes different types of alimony, but for those that do, here's the breakdown:

Temporary alimony is sometimes ordered to help one spouse cover legal and living expenses during the divorce proceedings themselves. Maybe one spouse moved out and needs help paying rent until the assets are officially divided up.
Rehabilitative alimony is the most common type of alimony. The payments are said to be "rehabilitative" because they're meant to keep a nonworking or lower-earning spouse afloat until they can return to the job market or get a better-paying gig. This could still take years depending on the ages of dependent children and whether further education and training is required to get a good-paying job. In some cases, the judge will require the receiving spouse to submit proof that he or she is actively looking for work to continue getting alimony payments.
Permanent alimony is relatively uncommon and only on the books in seven states (New Jersey, Connecticut, Vermont, North Carolina, West Virginia, Florida and Oregon) as of 2018. This type of alimony is reserved for long marriages (over 10 years) and is often limited to cases where one spouse depends entirely on the other's financial support with little hope of independence, for instance disability or an advanced age. (Lobbying efforts are underway in some of these states to get permanent alimony banned, seeing it as unfair to the paying spouse.)

When a mediator or judge orders alimony, they will set the terms of the payments, including for how long payments need to be made. Even "permanent" alimony doesn't necessarily last forever. In general, alimony payments stop if the receiving spouse gets remarried or the paying spouse dies. In rare cases, a spouse might sue the deceased's estate for continued payment of alimony.

Since every case is different, there's no set calculation for how long alimony is paid in the case of rehabilitative alimony, but Guillen says that the rule of thumb for divorce lawyers is that once a couple has been married for 10 years, alimony is typically paid for half the length of the marriage.

Do Cheaters Still Get Alimony?

This is a fair question. If a couple gets divorced because of one spouse's infidelity, can the cheating spouse still collect alimony?

Eighteen states, including the District of Columbia, are "no fault" divorce states. That means that judges treat both parties as equals, no matter the circumstances that led to the divorce. The only thing that the judge considers is each spouse's financial standing and reliance on the other for support.

If you get divorced in all other states, you have the option of a "no fault" or a "fault" divorce. The grounds for a fault divorce typically include adultery, bigamy, addiction, abuse (physical or psychological/emotional), imprisonment and inability to have sex (impotence or other sexual disfunction). But even in a fault divorce, all but one state allow the "guilty" party to receive alimony. The exception is Georgia.

Making Alimony Less Contentious

Guillen points out that while alimony can trigger a highly emotional response, it doesn't have to. And nothing says that divorcing couples have to let a judge decide the terms of their separation.

"A lot of people sit down at the kitchen table and have a neutral mediator help them understand how to figure it out," says Guillen.

However it's determined, an alimony arrangement needs to be clear, specific and in writing. Alimony can even be a one-time lump payment instead of a monthly check. Ultimately, the alimony agreement will be brought to a courthouse as part of the divorce settlement, at which point the document will need to be approved by a judge and turned into an official court order.

Failure to comply with a court order for alimony could lead to criminal charges of "contempt of court," although it rarely goes that far, Guillen says. If a spouse gets behind on alimony payments, the back payments begin to accrue interest and that alone is usually enough to keep people in compliance.

Of course, the paying spouse could always go back to the court with complaints that the receiving spouse is not playing by the rules, perhaps by refusing to look for work, and the judge could amend the court order. It's all part of the ugly, drawn-out mess known as divorce.