Alimony, which is also called spousal support or spousal maintenance, is a payment that is made by one spouse to the other in order to provide them with financial support following a legal separation or divorce. Alimony payments are usually made in regular installments, often monthly, according to a predetermined schedule.
Alimony is typically ordered by the court when it determines during a divorce or separation proceeding that one spouse should provide financial support to the other after their marriage ends either in divorce or separation. The order would be contained in the final divorce decree.
Alimony is intended to help provide for the basic needs of the former spouse, such as clothing, food, shelter, health care, and transportation. A court determines the amount of alimony by examining several factors relating to the ability of a spouse to pay the specified monthly amount to the other spouse. Additionally, they examine the needs of the spouse who is to receive the alimony.
Alimony may also be ordered so that a spouse may maintain the lifestyle they had during the marriage or allow the spouse to gain financial independence. In addition, it is also provided to prevent an unfair economic effect of the divorce.
In most cases, if the receiving spouse becomes capable of supporting themselves financially, alimony payments may be terminated. Alimony payments may have been ordered to maintain a spouse’s standard of living during the marriage. In this case, the payments may continue until they marry again.
In South Dakota, the court may order alimony prior to the final divorce decree so that the financial needs of the receiving spouse are met while the divorce is pending. A spouse may request alimony during a separation as well, without seeking a divorce.
This type of alimony is called temporary alimony. It may be requested on the same grounds as in a divorce. It is also separate from any child support payments that are made based on a child custody agreement.
What Are the Types of Alimony?
Typically, alimony payments are made on a monthly basis. There are three types of alimony, including:
- Rehabilitative alimony
- Permanent alimony
- Temporary alimony
Rehabilitative alimony is intended to support the receiving spouse until they become able to support themselves financially, perhaps while they pursue the education or training they need to gain employment. This type of support lasts for a set period of time. It typically terminates if the receiving spouse is successfully employed and can support themselves.
Permanent alimony is intended to last indefinitely. It means that the payments are made until there is a life-changing event, such as the death or remarriage of one of the spouses.
Temporary alimony is intended to last a specific amount of time, which the court typically sets. This type of alimony is usually paid during the period of time after a couple separates but before their divorce is final.
In South Dakota, courts are directed to take into consideration any factors they think are relevant to a specific case. Two main factors that courts should consider are as follows:
- Whether the spouse seeking support lacks the appropriate assets to provide for their reasonable needs, based on the standard of living established during marriage;
- Whether the spouse who seeks alimony is capable of supporting themselves through employment.
If the alimony order or agreement does not include a termination date, then the payments must continue until the court rules that the payments are no longer needed. The paying spouse would have to petition the court to terminate alimony for some reason, e.g., the remarriage of the receiving spouse.
Since alimony is typically ordered according to the projected need of the receiving party and the paying party’s ability to pay, alimony orders may be modified or terminated. This is dependent on the circumstances of the case.
In most cases, moving in with another partner or marrying a new spouse results in the termination of alimony payments. Other significant changes in life circumstances, including loss of a job or moving, may also reduce the amount of alimony or terminate alimony payments altogether.
If the alimony order or agreement does not include a termination date, then the payments are required to continue until the court rules that the payments are no longer needed. Since alimony is typically ordered according to the projected needs of the parties involved, these orders may be modified or terminated. This is dependent on the circumstances of the case.
How Do You Qualify for Alimony?
As noted above, there are several factors a court examines to determine if a spouse qualifies for alimony. These factors relate to the ability of the spouse who seeks alimony to provide for themselves the lifestyle they had during their marriage as follows:
- The financial resources of the person who requests alimony;
- The earnings from employment and other sources of each party;
- Each spouse’s potential earning ability is based on their skills, training, experience, and the job market;
- Whether the spouse seeking alimony has been absent from the job market and, if so, for how long;
- The age of the spouses;
- The physical and mental health of each spouse;
- The length of the marriage;
- The standard of living the spouses enjoyed during their marriage;
- The tax consequences of paying alimony for each spouse; and
- The fault of either of the spouses.
Note that on the question of fault, an award of alimony in South Dakota can be higher in amount because of the fault of the paying spouse. This would be the case if the paying spouse had committed adultery or was guilty of domestic violence. So, the amount of an award of alimony can be punitive in South Dakota.
Rehabilitative or restitutional alimony may be considered. If so, the court will also consider the contributions of the paying spouse during the marriage, the receiving spouse’s lost opportunity to advance vocational skills due to their family responsibilities, e.g., child-rearing, and the length of the marriage after the paying spouse attained a professional degree if they achieved that.
How Much Alimony Can You Receive?
South Dakota alimony laws do not place limits on the amount of alimony a spouse may have to pay. South Dakota law does not prescribe a set list of factors that courts should consider in calculating alimony payments. Many states have published guidelines and formulas for determining alimony. South Dakota is not one of them. There is no set list of factors, no guidelines, no formulas.
The Supreme Court of South Dakota, however, has struck down alimony awards where the recipient spouse failed to provide proof of their need for support.
Two factors that a court is sure to consider are whether one spouse is to have custody of any children and whether one spouse is required to pay child support. If the spouse with custody of the children cannot support themselves because they must stay home to care for the children, this factor would have a strong impact on their case to be paid alimony.
As previously noted, there are many factors the court considers when calculating alimony. It may be difficult to predict the amount of alimony that a court might consider excessive. Therefore, if a person seeks alimony or believes they may be required to pay it, it is best to discuss their case with a family law attorney.
How Long Does Alimony Last?
The duration of alimony depends on what the court deems just, which takes into consideration the circumstances and evidence presented by the parties. In some cases, alimony has a short duration. In others, it lasts until the death of the recipient spouse. The court has the discretion to modify the terms of an alimony order if the circumstances of the parties change.
How Do You Petition for Alimony?
A spouse can petition for alimony at several different times during a separation or divorce proceeding. The request can be included in the initial filing of separation or divorce papers.
The request may also be made while the divorce is pending.
It is important to remember that the court will not be aware that spousal support is needed unless it is requested. It is important to have the assistance of an attorney so that the right to alimony is not inadvertently waived.
How Do I Request Alimony or Modify an Alimony Order?
In order to receive alimony payments, an individual will be required to file a petition for alimony with the court that is handling the separation or divorce case. Many states include this request as part of the complaint for divorce.
Next, the spouse is required to be legally served with a notice for alimony. They are not required to consent to the alimony requested.
The court will then determine whether the alimony request should be granted. The alimony payments may be ordered in regular intervals, such as monthly or in one lump sum.
If an individual is making alimony payments and needs to have their order modified, it is important that they continue making the payments so as not to be held in contempt of court. Not making the payments could be considered a violation of the court order.
A modification begins by petitioning the court for a modification of the order. This petition must include evidence that a modification is necessary based on a substantial change that has occurred since the order was made. This may include evidence the individual was laid off or retired.
Significant changes may also be that the receiving spouse now earns a significantly higher income and no longer relies on spousal support to be financially stable. Other examples may include the paying spouse becoming disabled.
Where Can You Find the Right Lawyer?
It is important to have the help of an experienced South Dakota alimony lawyer with any alimony issues you may have. It is the best way to protect your rights as well as your current financial situation during a divorce or separation.
If you are considering filing for divorce and requesting alimony or have been served with divorce papers requesting alimony, it is essential to contact an attorney as soon as possible. LegalMatch.com can quickly connect you to a family law lawyer who can provide the help you need.
