Few know this, but Georgia allows 13 grounds for divorce, one of which is “irretrievably broken,” which is also referred to as a “no fault” ground, while the rest are all considered as “fault” grounds. If you have filed or been served divorce papers in Georgia, chances are you are contemplating the alimony payments which will be included in your divorce negotiations.
Whether or not alimony is a friend or foe in a divorce will depend on where you stand. But, no matter where that may be, the most important thing of all is for both parties to know exactly what’s in store for them while they make their way through the divorce process.
Overview of Alimony in Georgia
Alimony is the financial support which is paid by one spouse to the other. Generally, when alimony is ordered or agreed upon, the higher earning spouse makes periodic (usually monthly) payments to the lower earning spouse. The payments from the “monied” spouse to the “non-monied spouse” can occur both during and after the divorce.
In order to obtain an award of alimony, a recipient spouse must generally prove that they truly need the financial support from their partner and show that their spouse can pay a specific amount as alimony. When determining the appropriate amount of spousal support, the court will take other factors into consideration too, such as:
The spouse’ standard of living
The length of marriage
The financial resources and earning capacity of each spouse
The age and physical wellness of each spouse
How long it will take the supported spouse to get back on their feet if they are currently unemployed
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
Such other relevant factors as the court deems equitable and proper
See O.C.G.A. 19-6-5 for the specific alimony Georgia Statute on point.
Kinds of Alimony Available
In Georgia, temporary alimony may be awarded by a judge while the proceedings of the divorce are underway. This type of alimony is called “Pendente Lite” alimony, which basically means pending. After the divorce is final, the judge in Georgia can either order a permanent or temporary alimony. While this usually means that the judge will order a spouse to pay a specific amount in a monthly or bi-weekly basis, occasionally the court could order a spouse to make the payment in a lump sum. Contrary to popular belief, there are many types of alimony, which include:
Temporary alimony usually involves getting financial support for a specific period of time—as mentioned earlier, it is usually while a divorce is pending. It is important to note that being awarded a temporary alimony doesn’t necessarily mean you will be awarded with permanent alimony.
This is a less traditional setup which involves a spouse having to pay for direct expenses such as making car loan payments or the mortgage.
There also exist alimony arrangements which involve multiple payments being made by a spouse. This could also include the spouse having to make either lump sum payments or periodic payments, or a combination of both.
Negotiating alimony is always tricky, which is why it is wise to hire an experienced and professional lawyer to handle the negotiations. Hiring an attorney will help answer some of the pressing questions, such as the amount of support you should consider for the alimony along with the duration.
Evaluating The Resources of Your Spouse
Whether you will be at the receiving end, or the one who has to make the alimony payments, you will need the right information in order to negotiate more effectively. This means that financial disclosures by both parties may be part of the process. For the recipient, it is important to find out exactly what resources their spouse has, while for the one who has to make the payments, it will give them a better idea of their ability to pay the alimony.
However, more information may not be required in the case of one partner being responsible for all the expenses during the marriage, or in the case of one being certain about the financial resources of their partner. If this is not the case, then you will have to make sure that the following information is included in the forms that will be filled out during the divorce. The following is the information which may be required:
The separate assets of your spouse. If your spouse has separate assets, you are entitled to know what they are and how much they are worth.
Income and expenses. You will want to have a detailed report of your spouse’s monthly income and expenses. If the expense report shows that your spouse spends $800 dollars on eating out every month, and all you can afford are TV dinners, then you will definitely want to point that out.
Overtime, bonuses, and benefits. Some other important factors which should be included in the evaluation of income are things like bonuses, overtime, deferred compensation, fringe benefits, or any other benefits that your spouse receives. You should also pay attention to other things, such as stock options, unused vacation pay, company-paid vehicles, and health insurance. Such information will help both parties get to an agreeable solution.
Evaluating Your Needs
Needless to say, you will have to evaluate your needs, as well. This will be the obvious thing to do since you will also be required to prepare an expense and monthly income disclosure. This will allow you to determine how much support you need.
If you are the receiving spouse, another factor you should definitely have to consider is the fact that nothing is getting cheaper, and the prices of everyday items are going up day by day. So, if you’re on the receiving end of the support, you might want to include a provision for increasing that amount each year, to adjust for the increases in the cost of living. The cost of living adjustment is also referred to as COLA. You can then tie in the increases either to the local or the national COLA index that is available online, to get a specific percentage, or you could assume the annual increase.
Modifications and Tax Effects
The court can potentially readjust the alimony payment amount if either spouse is able to prove to the court that there has been a significant change in the circumstances which led to the order—if the paying spouse has involuntarily lost their job or if the recipient has gotten one, for instance. Generally, alimony will terminate automatically when the recipient remarries or a party dies. The court can also sometimes terminate or modify the alimony if it is found that the recipient now has a live-in relationship with someone they’re romantically involved with. This is also referred to as a meretricious relationship.
For divorce and settlement agreements entered prior to December 31, 2018, it is possible that periodic alimony payments are tax deductible by the payer and taxable to the recipient. This situation can, at times, be taken advantage of, the couple having their alimony payments structured in a way that creates the best tax scenario. It is also important to note that almost all lump sum payments, when it comes to alimony, are treated as property distributions by the IRS, regardless of whether the court or either of the spouses calls the payments alimony. These payments will not be deductible or taxable for either of the spouses. When dealing with structuring alimony, it is prudent to consult with a tax professional. Please be aware that the 2017 Tax Cuts and Jobs Act (TCJA) has significant implications on the tax effects of alimony. Please speak with your accountant regarding the implications.
Adultery in Divorce (In Georgia)
Adultery in Georgia is defined as the act of one spouse having sexual relations with another person who isn’t their spouse, while being in the bond of marriage. In order to prove the adultery of your spouse, one will need their spouse’s testimony, or any evidence, such as videos, photographs, phone records, or witness accounts, including the findings of a private investigator. All of these are helpful when trying to prove adultery.
So, how does adultery impact alimony in Georgia? Well, whenever adultery is the cause for a divorce in Georgia, the spouse who has been unfaithful could be barred from receiving any alimony. But, in the event that a person has forgiven their spouse (condoned the adultery), then such a bar to alimony might not be the case at all.
Remarriage and Cohabitation
In cases where one spouse is in a much better financial position than the other, the court may order the wealthier spouse to provide support for their partner. But the obligation of the paying spouse ends when the supported spouse remarries. In Georgia, the paying spouse is not obligated to get a separate court order to end the payments. All he or she has to do is simply end the payments on the day their spouse gets remarried. That being said, the paying spouse will still have to make the whole alimony payment right up until the day their spouse remarries.
Termination or Modification of Alimony in Georgia
It is possible for either of the spouse to terminate or modify the alimony by filing a motion asking the court to end or modify the alimony. This can be done when a receiving spouse ends up earning more than the paying spouse. And, in some cases, the court can also modify the amount of alimony for a supported spouse whose financial condition has worsened.
In order to modify or terminate the alimony, one has to file a motion in the superior court clerk’s office. They will then receive a date in which they will have to appear in court and provide the evidence to the judge to either terminate or modify the alimony. But, if you and your spouse have come to an agreement to modify or terminate an alimony agreement, there will be no need to attend a hearing.
While both spouses usually work outside of the home, the alimony law has been put in place to ensure the economic well being of those spouses who do not have the financial means of making ends meet during or after a divorce.