Alimony (referred to as spousal support in West Virginia) is a payment from one spouse to the other to help the recipient spouse avoid financial hardship. Most of the time, payments come out of income. Where the paying spouse does not have enough income but has other resources – say property or investments – then a court could order payments from these other sources. In either case, alimony payments must be fair and can’t exceed a spouse’s ability to pay.
A court’s involvement in this process is not always necessary. Spouses could agree to the amount and duration of payments by completing a property settlement or separation agreement. These are contracts that tell the court how the spouses want to divide their property, care for any children of the marriage, and make alimony payments if desired. If the spouses can’t come together on these issues, however, then a court will decide for them.
When a court grants a request for alimony, it’s called an award. Generally, the alimony award is based on the needs of the recipient spouse and the economic resources of the paying spouse. If the marriage ended because of a spouse’s cruelty, conviction of a crime, or adultery, however, then a court must consider this misconduct or "fault" when deciding whether to award alimony and how much is due. This means that an affair, for example, counts against the unfaithful spouse, but it does not automatically prevent this spouse from getting alimony. In circumstances where both spouses misbehaved during marriage, say, both had affairs, then a court will compare the fault when making an award.
Aside from a spouse’s fault, however, getting an alimony award has little to do with merit or punishment. The court uses a set of 20 factors to determine how much alimony to award. They include:
1. the length of the marriage
2. the time during the marriage when the spouses lived together
3. each spouse’s income and other recurrent earnings from any source
4. each spouse’s earning capacity based on education, skills, experience, length of absence from job market and care for children
5. how the marital property has been divided
6. the spouses’ ages, mental and emotional conditions
7. each spouse’s educational qualifications
8. whether a spouse sacrificed education or employment opportunities during marriage
9. the marital standard of living
10. the likelihood that the recipient spouse can increase earning capacity with additional education or training
11. any contribution made by a spouse to the education or career of the other
12. the expense of obtaining additional education
13. the costs of educating minor children
14. the costs of health care
15. the tax consequences of alimony payments
16. the feasibility of working outside the home if the spouse seeking alimony has custody of minor children.
17. each spouse’s financial needs
18. any legal obligations (like support of another person)
19. any costs and care associated with a child’s disabilities, and
20. any other appropriate factor to come to a fair result.
West Virginia divides alimony into four types: temporary spousal support (also called spousal support pendente lite), permanent spousal support, rehabilitative spousal support, and spousal support in gross. Either spouse may request any of these types of alimony, but the spouses must be living apart from each other before a court will order payments.
Temporary spousal support refers to payments made during the divorce process. For instance, a homemaker spouse who cares for minor children will likely need financial help to pay for groceries, gas, and other necessities before the divorce is final.
Permanent spousal support is payment that lasts as long as necessary for the recipient spouse to be able to self-support. If it is a fair arrangement, these payments could last for the recipient spouse’s lifetime. Just because they are called permanent does not mean they can’t be changed, however. Even permanent support can be changed by a court order, remarriage, or death.
Rehabilitative spousal support helps the recipient spouse get back to work. Rehabilitative payments are for a limited time to pay for training or study, but must go towards a reasonably attainable goal to self-support. In other words, just because one wants to become an astronaut doesn’t mean the paying spouse has to subsidize an unrealistic dream.
Spousal support in gross means the award is in a set amount and for a known period of time. For example, the court could order $60,000 in alimony to be paid monthly for five years. Payments can be periodic (as in the example, made monthly) or in lump sum – the whole $60,000 given at once.
At any time, either spouse can ask the court to increase, decrease, terminate, or extend any type of alimony payments if there has been a substantial change in either spouse’s circumstances. Usually, a substantial change has to do with a change in finances – the loss of a job, for example. A court can make a new order reflecting the change in circumstances, as long as it is fair to do so and continues to take both spouses’ needs into consideration.
If a recipient spouse remarries, then temporary and permanent alimony terminate. Rehabilitative support continues, even if the recipient spouse remarries, during the first four years of a rehabilitative period. For example, if the spouses agree or the court awards rehabilitative alimony for six years and the paying spouse remarries after two years, then rehabilitative payments must continue for another two years after remarriage.
Similarly, spousal support in gross continues even if the recipient spouse remarries. In that case, it continues for as long as the order requires. Going back to the example above, if $60,000 were due in $1,000 installments for five years and the recipient spouse remarried after four years, then payments must continue for another year after remarriage.
If either spouse dies, then permanent and temporary spousal support ends. Rehabilitative support terminates with the recipient spouse’s death. If the paying spouse dies, rehabilitative support continues unless it would be unfair to make the paying spouse’s estate keep paying. Spousal support in gross continues beyond either spouse’s death.
West Virginia follows the IRS structure for taxing alimony. If you are paying alimony, your payments are tax deductible. If you are receiving alimony, the IRS taxes what you receive as income.
You can read the law on alimony in the Code of West Virginia Sections 48-8-101 through 106 and the factors considered by the court in Section 48-6-301. For more on death or remarriage, see 48-6-202 and 203, respectively.
The Internal Revenue Service Publication 504, page 12, has more information on taxing support payments.