When a couple decides to divorce, one of the first questions discussed is often whether or not one spouse should pay alimony (spousal support) to the other. Spousal support is a court-ordered payment from one spouse to the other, either during the divorce or for a period after the divorce. Spousal support is available for spouses who need financial assistance to meet their basic needs while adjusting from two incomes to one during the divorce.
Judges in Louisiana can award three types of spousal support: interim support, periodic support, or permanent support. (La. Rev. Stat. Ann. § 111 (2018).) Interim support is spousal support that one spouse pays to the other during the divorce process. Periodic and permanent support is available to spouses after the divorce.
Depending on the circumstances of your case, the divorce process in Louisiana can take as long as one year or more. If you're used to your spouse working full-time and paying household expenses, you might not be ready to support yourself. Either spouse can request interim support, which the court will award if the judge finds that the requesting spouse needs financial help, and the higher-earning spouse can pay support.
Interim support awards are temporary and end when the judge finalizes the divorce. If post-divorce support isn't appropriate, the law allows a judge to extend the interim award for 6 months after the divorce, but only in limited circumstances. (La. Rev. Stat. Ann. § 113 (2018).)
Periodic post-divorce support is the most common type of support in Louisiana, and is appropriate in cases where the lower-earning spouse can be self-supporting, but needs time and financial assistance to achieve financial independence. The court presumes that each spouse will work after the divorce, but if one spouse stayed home during the marriage and lost valuable job skills or training, the judge will award periodic support during the transition to financial independence.
Permanent spousal support is rare, but judges can award it to spouses who need financial help for an indefinite period after the divorce. For example, if a spouse is of advanced age or suffers from a disability that prevents that spouse from working, the court may order permanent spousal support.
Periodic and permanent spousal support ends when one of the spouses dies or the supported spouse remarries. A court can also terminate support if it finds the supported spouse is cohabiting with a third party in a "marriage-like" relationship. (La. Rev. Stat. Ann. § 115 (2018).)
Before the court begins an evaluation for post-divorce spousal support, the requesting spouse must prove a need for financial assistance and that the paying spouse can afford to pay. Once the court agrees that there is a "need and ability to pay," the judge will then evaluate whether the requesting spouse was at fault for the divorce. For example, if you're asking for alimony, but you committed adultery or a felony during the marriage, the judge can limit spousal support in your case. (La. Rev. Stat. Ann. § 103 (2018).)
If the requesting spouse is not at fault, the judge will evaluate the following factors to determine the duration and amount of support:
When the court determines that the paying spouse committed domestic abuse against the supported spouse, the law in Louisiana presumes that spousal support is appropriate for the abused spouse. In other words, if there's a history of domestic violence and you can prove it, the court will award you spousal support, regardless of the other factors. (La. Rev. Stat. Ann. § 112 (2018).)
Most courts order paying spouses to pay spousal support periodically through an income withholding order. Income withholding orders direct the paying spouse's employer to deduct support payments from the paycheck and remit it to the court. Periodic payments are bi-weekly, monthly, or semi-annual and will not exceed 30% of the paying spouse's net income. However, if the court finds that the paying spouse committed domestic violence during the marriage, the judge can order the final award to exceed 30% and award it as a lump-sum payment.
Lump-sum payments may be appropriate in cases where the paying spouse doesn't have steady employment, but owns many assets that will meet the supported spouse's needs. A lump-sum payment may also be proper when one spouse asks the court for reimbursement of financial contributions towards the paying spouse's career or education throughout the marriage. (La. Rev. Stat. Ann. § 121 (2018).) Reimbursement payments do not terminate on the death of either spouse or remarriage of the recipient. (La. Rev. Stat. Ann. § 123 (2018).)
If the current support order is no longer fair or if circumstances changed making the order unnecessary, the paying spouse must request a review before ending payments. Failing to pay the support order can result in the supported spouse filing a motion for enforcement with the court. If the court finds that the paying spouse violates the order, the judge may charge the spouse with contempt, which carries with it several penalties, like fines, attorney fees, and jail.
The court can review interim, periodic, or permanent support orders if either spouse can prove a material change in circumstances since the last order. The judge will evaluate the award to ensure that it's still appropriate and fair for both spouses. (La. Rev. Stat. Ann. § 114 (2018).) If not, the court can increase, decrease, or terminate the payments.
In the past, the Internal Revenue Service (IRS) permitted a paying spouse to "write-off" support payments as a tax deduction and required the recipient of support to report and pay taxes on the income.
However, recent changes to the tax law have eliminated the alimony tax deduction and reporting requirements for all divorces finalized on or after January 1, 2019.
Spouses considering a divorce with a potential alimony should review the tax changes and speak with an experienced attorney before negotiating a final support award.