Alimony Awards in a Georgia Divorce
Assessing Alimony Claims / Exposure in a Georgia Divorce:
Unlike child support, alimony is not a statutory calculation on a worksheet. It is fact specific to your marital situation. Alimony is defined as "an allowance out of one party's estate made for the support of the other party when living separately. It is either temporary or permanent." O.C.G.A. section 19-6-1(a).
Broadly, alimony is based on need, ability to pay, length of the marriage, number of children, respective income, conduct of the parties, and the predisposition of the judge. An attorney knowledgeable about how the judges in your county approach alimony is critical to fair and reasonable evaluation of your claim or exposure. Atlanta Alimony Attorney Russell Hippe has tried numerous cases of these in the greater North Georgia area and can help you make a fair evaluation.Threshold Inquiry:
Is the spouse seeking alimony guilty of adultery or desertion? Per O.C.G.A. section 19-6-1(b), a spouse is not entitled to alimony if the separation of the parties is caused by that spouse’s adultery or desertion. This is a fact specific inquiry and may require considerable evidence and testimony to establish. For example, a cheating spouse can claim that an affair was not actually the cause of the separation and that she or he is still entitled to alimony. The spouse with the exposure will claim that "no the affair was the last straw".
To show lack of entitlement to alimony, a spouse must establish by a preponderance of the evidence that the separation between the parties was caused by the other party’s adultery or desertion. See,Vereen v. Vereen, 284 Ga. 755, 756, 670 S.E.2d 402, 404 (2008). Under Vereen, the burden of proof appears to be on the spouse defending the alimony claim.Statutory Factors to Consider in an Award of Permanent Alimony:
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 each party;
Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;
The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
Such other relevant factors as the court deems equitable and proper.
O.C.G.A. § 19-6-5Calculating the Amount of Alimony:
In the absence of any mathematical formula, fact-finders are given a wide latitude in fixing the amount of alimony based on all the facts and circumstances of the case. Vereen v. Vereen, 284 Ga. 755, 670 S.E.2nd 402 (2008); Farrish v. Farrish, 279 Ga. 551, 552, 615 S.E.2d 510 (2005).
Among the factors to be considered are the financial resources of each party, including their separate estates, earning capacity, and their fixed liabilities. Driver v. Driver, 292 Ga. 800, 741 S.E.2nd 631 (2013). In Wier, infra, the Supreme Court noted the fact finder can consider the obligor's assets and earning capacity as well as income in fixing permanent alimony.
Although conduct is relevant to alimony entitlement per OCGA § 19–6–1, conduct is not relevant in determining the amount of alimony to be awarded. See McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967); Harper v. Harper, 220 Ga. 770, 141 S.E.2d 403 (1965).
Wier v. Wier, 287 Ga. 443, 696 S.E.2d 658, 659 (2010).
Further, alimony should never awarded for the purpose to penalize a spouse for misconduct. McCurry v. McCurry, 223 Ga. 334 (1967).
Types of Alimony:
Alimony can be either periodic (a certain amount per month for a certain period of time) or lump sum. A court can award a specific lump sum amount of alimony in lieu of property division. For example, in the Driver case, supra, the trial court awarded $500,000 as equitable division of property paid as $200,000 in lump sum and the balance in installments of $3500 per month for five years. This award was upheld by the Georgia Supreme Court. A lump sum award payable in installments is not subject to modification under O.C.G.A. section 19-6-19. Rivera v. Rivera, 283 Ga. 547, 661 S.E.2nd 541 (2008).
Alimony Issues at the Temporary Hearing:
Although the full merits of the case are not in issue at a temporary hearing, the defense of un-condoned adultery or abandonment can still be presented. An order to maintain historic expenses can be asserted and temporary alimony can be awarded "in kind", referring to an order allowing one spouse to live in the property of the other or use his or her vehicle. A temporary award of alimony, which can include considerations of attorney's fees and expenses of litigation, will remain in place until the temp. order is modified or until the final order is entered.
In reaching the final determination of alimony, however, the court should look to the financial circumstances of the parties at the time of the final hearing and should not consider temporary support payments. See,McEachern v. McEachern, 260 Ga. 320, 394 S.E.2nd 92 (1990).