Alimony in Georgia
One of the most contentious issues in a Georgia divorce is alimony. Your best resource is a Georgia divorce attorney that is familiar with the Family Court judges in your area and can advise you on what to expect if you let a judge decide how much and for how long you will pay spousal support to your ex spouse. This page explains spousal support after a Georgia divorce, including when courts order alimony, how the amount of spousal support is set in Georgia, and how and when Georgia family law courts stop alimony once it's awarded.
When Does the Court Order Alimony
Alimony is also sometimes called spousal support. It's designed to provide the lower-income spouse with money for living expenses over and above the money provided by child support. Spousal support is different from child support. Where child support is a simple mathematical calculation using guidelines published by Georgia, spousal support is very much in the discretion of the judge.
It's rare to see permanent spousal support ordered in a marriage of less than 10 years or so, and also rare to see it awarded in cases where the incomes of the two spouses are more or less equivalent. To state it the other way, alimony is usually reserved for situations where one spouse has been economically dependent on the other for most of a lengthy marriage. However, there have been cases of spousal support being awarded in a marriage as short as seven years when the breadwinner was at fault in the break up of the marriage.
There is a possibility of rehabilitative alimony after shorter marriages. Rehabilitative support is the solution some courts apply when one of the spouses needs some time to transition back into the job market. Perhaps the prototypical rehabilitative alimony case is the teacher who's been away from the classroom for a few years and who needs to take a few courses to renew her teaching certificate. The court might order her ex-husband to pay her modest alimony for two or three years so she can do this and restore her income.
How is Georgia Alimony Calculated
There is no formula for setting the amount of spousal support; instead, the determination of alimony rests in the discretion of the trial court judge. Spousal support is to be granted only on a showing of need by one party together with the requisite ability to pay by the other.
Can Alimony be Changed or Terminated
Unless there is an agreement to the contrary, alimony is always modifiable. Changing alimony generally requires a showing of a fundamental change in circumstances, and it's rare to see alimony increased just because the payor's fortunes have improved. More typical would be the case where the payor's income has taken a downturn since the award of alimony, for reasons the court believes are not self-imposed. In those cases, the court may reduce alimony or may eliminate it entirely.
Alimony stops when either party dies, when the spouse receiving alimony remarries or cohabits for at least ninety days. Cohabitation means something more than simply having sex with each other, or even spending a night together. It takes more of a pattern of occupying the same residence, as evidenced by things like delivery of mail and voting registration, storage of clothing, eating meals together, etc. Alimony can also stop by an agreement of the parties entered in court or by a court order where there is a showing that alimony is no longer necessary.
Alimony and Taxes
Alimony gets treated differently from child support on your tax return. Alimony is tax deductible to the person who pays it, and included in the taxable income of the person who receives it. Child support, by contrast, is not taxable to the person who receives it and not tax deductible to the person who pays it. That means that when you and your spouse have dramatically different incomes, there may be some tax advantages to using alimony, even if a judge wouldn't ordinarily award it.
The tax advantages of using alimony can be so powerful that people going through divorce are tempted to label as alimony some payments that are really child support or property settlement. But Uncle Sam has already anticipated that. The government's response is in the form of two tests:
The payments must be in cash. Checks or money orders are acceptable, but not debt, property, or services.
The payments must be provided for in a divorce or a written agreement
You can't claim alimony during any year for which you file a joint tax return.
You can't pay alimony during a time when you and your spouse live in the same residence.
It has to be specifically noted as spousal support or alimony.
The tax advantages of using alimony can be so powerful that people going through divorce are tempted to label as alimony some payments that are really child support or property settlement. But Uncle Sam has already anticipated that.
First, Congress recognized the temptation to characterize property settlements as alimony, so the 1984 Tax Reform Act contains provisions calling for the recapture of "excess" alimony that looks too much like a property settlement. Specifically, the rules provide that if alimony is excessively "front-loaded" (concentrated too much in the first two years of payments), the paying spouse must "recapture" it. (That means the paying spouse must include it in his or her gross income).
You know you're safe if alimony doesn't decrease by more than $10,000 during any one of the first three years in which alimony is paid.
Next, the test for alimony fixed as child support is actually three separate tests.
You can't call it child support
You can't change it based on something that happens to a child
You can't change it based on something that's associated with something that happens to a child
Alimony Law In Georgia
Listed in OCGA § 19-6-5(a) are the following factors to be considered by the Georgia family court judge in deciding an award of spousal support:
the standard of living established during the marriage; the duration of the marriage;
the age and the physical and emotional condition of both parties;
the financial resources of both parties; where applicable, the time necessary for either party to gain sufficient education or training to find appropriate employment;
the contribution of each party to the marriage, including services rendered in homemaking and child care; and
the financial condition of the parties.
Husband complains the trial court's award of alimony and attorney fees to Wife was excessive. At the final hearing on January 24, 2006, counsel for Husband informed the trial court there were three items for resolution by the trial court (Wife's requests for alimony, attorney fees, and funds to repair the marital residence) because the parties had agreed Husband would pay monthly child support of $867, an amount representing twenty percent of Husband's gross monthly income, and they had agreed Husband would relinquish to Wife all his title and equitable interest in the marital home as full payment of the arrearages he owed pursuant to the parties' consent order of separate maintenance. After accepting the amount of child support agreed upon by the parties, the trial court incorporated into the final judgment and decree of divorce that provision and the agreed-upon provision regarding ownership of the marital home. The trial court awarded Wife monthly alimony of $850 for twelve years, $4,000 in attorney fees, and $5,000 for repairs to the marital home.
In the absence of any mathematical formula, (fact-finders) are given a wide latitude in fixing the amount of alimony ..., and to this end they are to use their experience as enlightened persons in judging the amount necessary for support “under the evidence as disclosed by the record and all the facts and circumstances of the case."
Farrish v. Farrish, 279 Ga. 551, 552, 615 S.E.2d 510 (2005) .
OCGA § 19-6-5(a) requires the fact-finder to consider several specific factors and “such other relevant factors as the court deems equitable and proper." The record contains the financial statements of both parties, and the transcript of the final hearing establishes the trial court considered the length of the marriage, Wife's absence from the labor market while giving birth to and raising six children, and the disadvantages associated with her late arrival into employment outside the home. We conclude the trial court did not abuse its discretion in awarding Wife twelve years of spousal support.
A decision on whether to execute a marital settlement agreement that includes a provision for alimony should not be made without consulting a Family Law Attorney.
Military Wages and Spousal Support
Military wages can be garnished to collect alimony. You must submit a form called an "Income Withholding Order". This form is then sent to the Defense Finance and Accounting Service at the address below in order to initiate the garnishment of military wages for alimony. The Income Withholding Order is the only form that will authorize the military to withhold money. Even a divorce decree that orders a member of the military to make alimony payments is not sufficient. If you have any questions about obtaining or sending the Income Withholding Order, you can contact DFAS at 1-888-332-7411. The form can be mailed or faxed to the following office:
Defense Finance and Accounting Service
PO Box 998002 Cleveland, Ohio 44199-8002
FAX: (216) 522-6960
Military Child Support and Alimony Questions and Answers
Disability Payments and Alimony
In general, disability payments are not divisible in a divorce as marital property. However, disability payments can be considered as income for the calculation of spousal support. This usually is an issue in a military divorce or where the spouse is covered under the Railroad Retirement Act. See
Lanier v. Lanier, 278 Ga. 881 (2005)
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