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- Separation & Divorce
What is Alimony?
Alimony is a payment ordered as part of a matrimonial proceeding in a court of law. It is the judicial measurement of a wife's (sometimes a husband's) right to financial support. Temporary alimony (pendente lite) is awarded until final determination of a marital action, when permanent alimony is fixed.
In the United States, the state court granting a divorce or separation decree must have jurisdiction over the marriage. It must also have jurisdiction over the husband's person in order to issue an enforceable requirement to pay alimony. While there may be collection problems if the husband leaves the state and goes elsewhere, the decree is enforceable, under the full faith and credit clause of the Constitution.
In Williams v. North Carolina (1942), the U.S. Supreme Court enunciated a doctrine of "divisible divorce", that is, a state may effectively terminate a marriage although it is powerless to grant enforceable support. Thus a woman determined to end a marriage, but lacking grounds in one state, may establish residence in an "easy" divorce state like Nevada and secure a valid divorce. But if her husband fails to appear personally or by counsel in the Nevada action, the alimony provisions will be unenforceable anywhere, even in Nevada, since neither Nevada nor any other state could force the husband to comply. (A wife may, however, under the Uniform Support of Dependents Act, secure child support, in whatever state the husband resides.) Similarly, a husband may migrate, secure a valid onesided divorce, and leave the wife no legal remedy. New York State protects the wives of such errant spouses by permitting suit for support even after a valid foreign divorce.
Some states have set maximum alimony limits, but the amount usually is based on the family's pre-separation living standard and is limited by the husband's finances. Usually, the courts have discretion to fix amounts as justice and circumstances require. The primary duty of support rests on the husband, but the wife's assets, income, and earnings potential are relevant.
Pennsylvania refuses permanent alimony on the theory that support is an incident of marriage and the right to support ends with its termination. Nearly every other state recognizes the right to alimony, although standards vary.
Alimony should be differentiated from property division. Some states will divide property as recompense to the injured party in cases of marital misconduct. Except for "community property" states, most states will not divide property at all but will award alimony only, without regard to the financial or other contribution the wife has made to the husband's assets. Since divorce ends a wife's right to inherit upon the husband's death (when alimony also terminates), the practice of awarding alimony only and not dividing capital assets has been criticized as unfair. Such criticism seems especially valid when the marriage has been of long duration and when there are children, support of whom devolves upon the wife.
Conversely, husbands often are saddled by a lifetime obligation without regard to their impaired earning ability in later years. It is often urged that both parties should have easy access to relief as circumstances change. However, although most states have laws theoretically permitting such alimony adjustments, practical redress under present laws often proves impossible.