When a couple divorces, one spouse may be ordered to pay the other during the divorce process and/or for some period of time following a final divorce. This money is called alimony or spousal support. The concept of alimony developed when most marriages followed the traditional pattern of a husband who worked outside the home and a wife who stayed home and took care of the household. Because employment prospects for women were limited, particularly if they had little experience working outside the home, the husband remained responsible for supporting the wife after the marriage ended.
Although both men and women now work outside the home in most marriages, alimony laws remain in place to ensure economic fairness in divorce. When both spouses have contributed to building a marital lifestyle, courts generally require the higher earner—whether the husband or the wife—to assist the lower earner in maintaining that lifestyle, at least for some period of time.
Types of Alimony Available in Delaware
A judge in Delaware may award temporary—or "interim"—alimony during divorce proceedings, as well as either short-term or long-term alimony after the divorce is final. Alimony awards generally direct one spouse to pay the other a specified amount periodically (every month, for example) for a predetermined length of time.
Delaware law specifically restricts permanent alimony awards to marriages of at least 20 years. In shorter marriages, awards cannot last longer than half the length of the marriage. (For example, five years of alimony would be the maximum for a ten-year marriage.)
Delaware courts consider alimony to be primarily rehabilitative in nature: paid by one spouse for a temporary period of time to allow the other to find a job or obtain training and education to improve employment prospects. A spouse receiving alimony in Delaware has an ongoing obligation to seek employment, along with any training necessary to improve employment opportunities, unless a judge finds this requirement to be unfair due to the spouse’s incapacitating illness, disability, or advanced age, or due to the needs of minor children living with the spouse. The needs of any minor children generally create only a short-term delay in the obligation to seek employment.
Couples can also make their own agreements regarding terms and conditions of alimony, including an agreement to waive (give up) the right to alimony.
Eligibility for Alimony
Before ordering any kind of alimony, the court will consider whether or not one spouse has a need for support because the spouse:
- is dependent on the other spouse, and the other is not already legally obligated to provide support (under the terms of a prenuptial agreement, for example)
- lacks sufficient property, including any apportioned marital property, to provide for his or her own reasonable needs
- is unable to become self-supporting through appropriate employment, or
- is the custodian of a child whose condition or circumstances make it appropriate for the spouse to delay finding employment.
Once the court finds that one spouse needs support, it can then award alimony in whatever amount and for whatever period of time seems fair, subject to the time limits based on length of marriage (discussed above) and any additional relevant circumstances. Delaware courts don’t take fault into account when determining the fairness of alimony awards, but they do consider all factors relating to the needs of one spouse and the other spouse’s ability to pay. Such factors include:
- the financial resources of the spouse seeking maintenance, including separate property and any award of marital property
- any time and expense required by the spouse seeking maintenance to obtain education and training for appropriate employment
- the couple’s standard of living during marriage
- the length of the marriage
- the ages and physical and emotional conditions of both spouses
- any financial or other contributions by either spouse to the other’s education, vocational training, career, or earning capacity
- whether either spouse has foregone or postponed economic, education or other employment opportunities during the marriage
- any tax consequences of the alimony award, and
- the paying spouse’s ability to provide for the needs of both spouses.
Modification or Termination
Unless the couple has agreed, in writing, that neither will try to modify the alimony award, either spouse can ask a court to modify payments due to a material change in circumstances. Absent a written agreement stating otherwise, alimony terminates on the death of either spouse, or on the remarriage or "cohabitation" of the recipient. A court will consider a recipient to be cohabiting for purposes of alimony termination if the recipient is living with a new partner and they are holding themselves out as a couple. The alimony recipient does not have to be receiving any financial benefit from the cohabitation.
Periodic alimony payments are usually taxable to the recipient and tax-deductible by the payer. Couples can sometimes take advantage of this situation by structuring alimony payments to create the best possible tax scenario for both spouses.