Alimony & Property Division

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Alimony, Generally

Alimony is a payment from one party to their spouse (or former spouse) that is made for the support of the other party when living separately. Alimony is usually ordered when the parties' divorce will cause an unfair economic or social consequence for one ex-spouse (e.g., poverty or a significantly lower standard of living) or if one party's conduct towards the other party offends the Court's moral conscience (e.g., adultery, family violence, financial infidelity, etc.). Alimony obligations can be temporary (e.g., one year, five year, ten year, etc.) and/or “permanent” (until death or remarriage) in nature. Similarly, alimony awards may be required to be paid via a single one-time payment (a.k.a. “lump-sum alimony”), over time on a repeating weekly, monthly and/or yearly schedule (a.k.a. “periodic alimony”), or as specified payments for particular expenses of the other party (a.k.a. “in-kind alimony”). Alimony awards are only available in Georgia via actions for divorce, separate maintenance, and/or abandonment/desertion. When conceptualizing alimony, it may be helpful to think of it and property division as two sides of the same coin, where the Court is attempting to decide how to properly divide the parties' tangible assets (real estate, vehicles, finances, etc.) and intangible assets (careers, education, earning capacity, etc.), as well as compensate the parties for past contributions to, sacrifices for, and betrayals against the marital until.

Factors Considered in an Alimony Award

In general, whether an award of alimony may be made depends on three primary factors: (1) the needs of the party who is to receive alimony; (2) the ability of the other party to pay said alimony award; and (3) the conduct of each party toward the other. Generally, a party whose adultery or desertion was the cause of the parties' separation cannot is not entitled to an award of alimony. Once it has been determined that an award of alimony may be made under the above criteria, much discretion is left to the Court to determine the appropriate amount and form of said alimony award, although common factors considered by the Court include:

  • The standard of living established during the marriage;
  • The duration of the marriage and 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 age, physical condition, and emotional condition of each parties;
  • The financial resources and condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
  • The time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment.
Modification & Termination of Alimony

Either former spouse may file a modification action to either increase or decrease the alimony obligation/award. In such a situation, it is the filing party's obligation to prove that there has been a substantial change in the income and financial status of either former spouse to warrant a modification (i.e. there has been a significant change in the receiving party's needs and/or the paying party's ability to pay). Generally, lump sum alimony is not subject to modification; rather only where a party has been ordered to pay alimony in monthly, annual or other periodic or in-kind payments is alimony modifiable. As well, alimony obligations/awards generally terminate upon the death and/or remarriage of the party to whom the alimony is owed. As with most items related to divorce, however, whether your specific alimony obligation/award is modifiable and/or terminable will depend on the specific terms of your alimony order. As such, it is critical to have an experienced and capable family law attorney negotiating, drafting, and reviewing your alimony awards/obligations so as to fully protect your interests, whether you are the party obligated to pay alimony or the party entitled to receive alimony.

Property Division and “Equitable” v. “Equal”

Upon divorce, the parties (or the Court) must divide the parties' marital property (including real estate, vehicles, financial accounts, personal property, and other assets) as well as marital debts (loans, credit accounts, and other liabilities). Georgia is an “equitable distribution” state, meaning that spouses are not necessarily guaranteed an equal split of their marital property, but rather are entitled to a “fair” distribution of their marital property. Generally, equitable distribution does result in the division of the estate on a nearly 50/50 basis, but there may be reasons why an otherwise equal split is not equitable, such as adultery, family violence, or other improper conduct of one of the spouses. The Court is not bound to any specific factors when deciding how to equitably divide the party's marital property, although the same factors considered in making an alimony award are often considered, such as the relative separate assets, income, earning capacity and financial status of each party, the parties' conduct towards one another during the marriage, as well as the needs of the parties and their dependents. As there are no specific factors to be considered, ultimate discretion lies in the hands of the Judge or Jury deciding your case. Because of this uncertainty, most divorcing parties reach a private agreement as to the division of their marital property, which the Courts will generally enforce.

Marital Property v. Separate Property

When it comes down to property division, there are two relevant classifications of property, namely “Marital Property” and “Separate Property.” These classifications are important because the parties' respective separate property is not subject to property division by the Court (although the relative size and amount of the parties' respective separate property may be the basis for an award of alimony, as explained above). Marital Property generally includes all assets, debts and/or liabilities that were acquired by the parties during their marriage, regardless of whom acquired or incurred the same. Each spouse's Separate Property generally includes said spouse's pre-marital assets, debts, and liabilities, any gifts and/or inheritances made directly to that spouse in their individual capacity, and any “proceeds” from any separate property (i.e., property acquired with other separate property only). Gifts from one spouse to another are generally Marital Property if they were purchased with marital funds, as are business interests, pensions, and other assets that were developed or acquired during the marriage. As well, Separate Property can become Marital Property through commingling (i.e., the mixing of separate and marital property such that they are no longer distinct from one another) or other actions by the parties during their marriage. As such, to ensure that all of you and your spouse's assets and debts are properly classified (and therefore properly included or excluded from property division, as the case may be), it is critical that you and your attorney trace all you and/or your spouse's significant assets, debts and liabilities in back to their source as well as the date they were originally acquired. In certain situations, it may be necessary to employ forensic accountants or other professionals who can assist in properly cataloging you and your spouse's marital property and respective separate property.

Atlanta and Augusta Family Law Firm for Healthcare Providers and their Family Members

Hamil Little’s attorneys have extensive experience in family law and domestic relations actions in Georgia's courts and otherwise guiding and assisting healthcare providers, professionals, businesspersons, and/or their family members in avoiding legal pitfalls associated with their personal lives, relationships, and family. Our law firm has offices in Atlanta and Augusta, Georgia. Contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta) to schedule a confidential consultation.