Whether you’ve decided to file for divorce, or you’ve received legal documents from your spouse, the process
is often overwhelming and emotional. Among the complicated topics in divorce are child custody and child support, property division, allocation of marital debt, and alimony. Alimony (the court sometimes refers to it as “spousal support”) is a court-ordered payment from one spouse to the other during or after the divorce and often a topic of contention during divorce negotiations.
Courts developed the concept of alimony during a time when “traditional” marriage was common. Historically, many families selected one spouse (usually the husband) to work while the other stayed home to raise the couple’s children and care for the home. When the couple divorced, it often left the lower-earning spouse scrambling to become financially self-supporting.
Although marital roles have evolved over the years, the concept of alimony remains: to provide financial support to a lower-earning spouse during divorce proceedings and for a period after the divorce, as necessary.
Judges in Delaware may award temporary alimony during divorce proceedings and short-term or long-term (permanent) alimony to continue after the divorce. Temporary or “interim” support is available to lower-earning spouses during the legal divorce process and will help with the adjustment from a two-income to a one-income household.
If the court orders interim support and the couple also has minor children, the judge or commissioner will also award temporary child support to ensure the custodial parent can meet the children’s needs. Interim alimony ends when the judge finalizes the divorce.
The most common type of support in Delaware divorce cases is short-term rehabilitative support. The purpose of rehabilitative support is for the higher-earning spouse to provide financial assistance while the recipient spouse obtains necessary job training, education, or licensing to improve employment opportunities. Rehabilitative alimony cannot last longer than half the length of the marriage. For example, a 10-year marriage would result in a maximum of five years of rehabilitative alimony.
Any spouse who receives alimony must make a good faith effort to obtain proper training (attending classes or job interviews) and employment, unless the court specifically finds that the recipient is unable to do so due to a disability or advanced age.
Additionally, the court will make exceptions in cases where custodial parents can’t work due to the needs of a minor child. (Del. Code Ann. tit. 13, § 1512 (2018).) In cases where the recipient spouse is unable to become self-supporting, the court may order permanent alimony. However, permanent support is rare, and Delaware law generally reserves these awards in cases where the marriage lasted at least 20 years.
Alimony is gender-neutral, and in Delaware, either spouse can request support during a divorce. However, to qualify for alimony, a requesting spouse must first prove:
Once the court finds that one spouse needs financial support, the judge can then award alimony in an amount and duration for whatever period seems fair, subject to the time limits listed above.
Courts in Delaware don’t consider marital fault when determining the fairness of alimony awards. Judges have broad discretion when creating the final support order. However, the court will consider the following factors when developing a final award:
Most spouses pay alimony periodically (usually monthly) through an income withholding order created by the court. Income withholding orders instruct the paying spouse’s employer to deduct alimony directly from the employee spouse's paycheck and sending it to the supported spouse.
Spouses can agree to pay spousal support in whatever frequency and with any method they choose. However, if you can’t agree, the court will decide between periodic payments, lump-sum (one-time) payments, or payment through an exchange of personal property.
If the court has issued a spousal support order, paying alimony isn’t optional. If the paying spouse fails to pay, the supported spouse can ask a judge to enforce the court order. Penalties for non-payment may include fines, garnished wages or tax returns, liens on property, and jail.
Unless the couple agrees, in writing, that neither spouse may request a review of alimony in the future, then either can ask the court to modify or change the amount of support later.
Any spouse asking for modification must demonstrate that a change in circumstances has taken place which affect payer’s ability to pay or the recipient’s financial circumstances. Remarriage or cohabitation may qualify as a change in circumstance. While remarriage is easy to show to the court, cohabitation (living with someone while in a relationship) isn’t, and you’ll likely need to request a hearing with the court to change or end alimony based on your ex's new relationship. Alimony automatically terminates if the paying spouse dies.
In divorces finalized before December 31, 2018, the paying spouse can write-off alimony payments as a tax deduction, and the recipient must report the support as income.
However, recent changes to our tax laws eliminate the tax deduction and income reporting requirements for all divorces finalized on or after January 1, 2019. Couples negotiating alimony during a divorce should consider the tax effects of the new laws before signing any divorce settlement agreement.