Alimony, and divorce law in general, is very fact driven and litigated outcomes are impossible to predict. Understanding how alimony is analyzed and decided under Georgia law helps couples set realistic expectations when negotiating or mediating their divorce. When you have questions about your situation, it is important to seek guidance and advice from the appropriate professionals – mediators, lawyers, or counselors who are committed to supporting your goals for your divorce. If you would like to evaluate the issue of alimony on your own, the information below walks you through the Georgia statutes which judges, lawyers, and divorcing couples look to for deciding issues related to alimony. It is important to understand these rules so you (and, perhaps, your spouse if you are working together on your divorce) can look honestly at your situation and think through all aspects of alimony. For some couples the analysis will be very simple, and for others the analysis will touch on and affect every other issue in their divorce.
Let’s begin with a look at the Georgia statute which defines what alimony is and when alimony may and may not be awarded.
GA Code § 19-6-1 (2018)
(a) Alimony is 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.
Alimony is a single payment, or a series of payments, made after the parties have separated (spouses can be separated and still living in the same residence). Temporary alimony can be ordered by the court for the period after separation but before divorce and permanent alimony can be ordered for the period following divorce (see below for more information on permanent alimony).
Alimony is paid from the paying spouse’s separate property.
Marital Property – all property acquired by either spouse individually or by both spouses together during their marriage.
Separate Property – any property owned by a spouse before marriage or receive by a spouse during marriage via gift or inheritance which does not become comingled with marital assets during the marriage.
The reference in the alimony definition to a spouse’s “separate estate” means any of that spouse’s separate property. That could be inherited property or, more often, income earned by that spouse after divorce.
EXAMPLE: Ben and Gerri are getting a divorce and Ben has asked the court to award him alimony. Gerri inherited $400,000 from her parents before she married Ben and has kept that money separate and segregated from their marital assets so this is Gerri’s separate property and will not be subject to equitable division in their divorce. Gerri also earns more money than Ben. A judge could order that Gerri pay Ben alimony either in a lump sum from Gerri’s separate inheritance or in monthly or other periodic installments from Gerri’s post-divorce income.
Whether a judge would decide that Ben needs alimony, that Gerri could pay alimony and how much alimony would be is totally dependent on the other facts involved in Ben and Gerri’s divorce.
(b) A party shall not be entitled to alimony if it is established by a preponderance of the evidence that the separation between the parties was caused by that party’s adultery or desertion. In all cases in which alimony is sought, the court shall receive evidence of the factual cause of the separation even though one or both of the parties may also seek a divorce, regardless of the grounds upon which a divorce is sought or granted by the court.
If one spouse can prove in court that the spouse asking for alimony committed adultery and that the adulterous act or acts caused the spouses to separate, then the court must deny the adulterous spouse alimony.
Many divorces involve adulterous behavior by one or both spouses. Even if one spouse cannot prove (by a preponderance of the evidence – not beyond a reasonable doubt) that adultery was the cause of separation, the evidence presented at trial about both spouse’s actions toward the other can be taken into account by the judge when deciding whether to award alimony, how much alimony should be paid and for how long.
(c) In all other cases in which alimony is sought, alimony is authorized, but is not required, to be awarded to either party in accordance with the needs of the party and the ability of the other party to pay. In determining whether or not to grant alimony, the court shall consider evidence of the conduct of each party toward the other.
In Georgia, neither party is automatically entitled to alimony – alimony may be awarded, “but is not required.” Georgia law does not provide a formula for couples or the court to use to determine alimony. Instead, Georgia law has two threshold questions which both must be answered “Yes” – Does one spouse need to receive alimony? and Does the other spouse have the ability to pay alimony? As mentioned above with respect to alimony, the court must consider evidence of the spouse’s conduct toward each other when deciding whether to grant alimony.
PRACTICAL TIP: Because of the wide-ranging factual evidence that can or must be presented in court in order to establish one spouse’s entitlement to alimony, litigating this issue can be extremely difficult, embarrassing and damaging to one or both spouses and to a family. Many divorces involve adultery or other unkind, frustrating, or cruel behavior, and judges frequently hear evidence of spouses mistreating each other to varying degrees. Therefore, parties who “want their day in court” on these issues should understand that a judge likely will not be outraged, upset or shocked by the evidence presented and the judge’s decision will likely not vindicate either party.
(d) Should either party die prior to the court’s order on the issue of alimony, any rights of the other party to alimony shall survive and be a lien upon the estate of the deceased party.
If one party to a divorce dies before the court can issue an order regarding alimony, a lien on the deceased spouse’s estate is created to secure any alimony obligation which the court might impose.
(e) Pending final determination by the court of the right of either party to alimony, neither party shall make any substantial change in the assets of the party’s estate except in the course of ordinary business affairs and except for bona fide transfers for value.
Once one party asks the court to award him or her alimony, both spouses are prohibited from making substantial changes to their assets except those which occur in the ordinary course of business affairs. Financial transactions should continue as they did before one party sought alimony – in the ordinary course. Any asset transfer made during this time must be for full value. This rule is in place specifically to keep either spouse from transferring assets in his or her name to other parties for less than fair value to reduce their perceived ability to pay alimony.
A determination that one spouse needs alimony and the other spouse has the ability to pay alimony can be made by the court or the parties if they are working together to come up with a fair settlement. The next step is to figure out how much alimony is needed and for how long. Georgia does not have a formula to calculate alimony like some other states do. Instead, the law below is used to figure out the amount and duration of alimony payments.
PRACTICAL TIP: As difficult as it might be to do, when thinking about any of the factors below, each spouse should consider how the other spouse would view that factor and seriously consider the other spouse’s concerns about their post-divorce life and how paying or receiving a certain amount of alimony will impact each spouse’s ability to support themselves and their family after divorce. Spouses know their situation better than a judge ever will and outcomes of divorce trials are not nuanced in the same way a negotiated settlement by spouses would be.
GA Code § 19-6-5 (2018)
(a) The finder of fact may grant permanent alimony to either party, either from the corpus of the estate or otherwise. The following shall be considered in determining the amount of alimony, if any, to be awarded:
(1) The standard of living established during the marriage
What standard of living did you enjoy during the marriage? Will you be able to maintain that standard of living post-divorce without the aid of spousal maintenance?
(2) The duration of the marriage
How long were you and your spouse married? Did your marriage last many years, and did you come to depend on the support of your spouse during the marriage?
(3) The age and the physical and emotional condition of both parties
Do you suffer from a physical, mental, or emotional condition that would make it hard for you to support yourself post-divorce? Are you close to retirement age?
(4) The financial resources of each party
Are your personal or separate financial resources limited as opposed to your spouse? Is your earning capacity different than your spouse? Does your spouse have the ability to pay alimony? Judges must weigh one party’s need to receive alimony versus the other party’s ability to pay alimony.
(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment
Are you employed? If not, how long would it take you to obtain the necessary education and training to become employed? Do you have the financial resources necessary to obtain the employment and training necessary to become employable? Rehabilitative alimony may be awarded to seek the education necessary to become employed.
(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, childcare, education, and career building of the other party;
Did you sacrifice your career or earning potential to support your spouse during marriage? Did you work long hours or travel extensively to support your family?
(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
Do you have significant separate assets? What is your current capacity to earn income? Do you have student loans incurred before your marriage?
(8) Such other relevant factors as the court deems equitable and proper.
The court can consider any other facts presented by the parties. As mentioned above, litigating the issue of alimony allows both spouses to present a wide range of evidence about the marriage and each other’s behavior. Spouses should seriously weigh the possible benefits of being awarded alimony or defeating a claim for alimony against the possible financial costs of litigation, the possible permanent damage to their ability to co-parent in the future. Is spending $50,000.00 in attorneys’ fees to save $25,000.00 in future alimony payments worth it?
(b) All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided.
Unless the parties agree or the court orders otherwise, any alimony due and payable after the death of the paying spouse does not have to be paid. Alimony which should have been paid before death but was not paid is still owed by the deceased spouse’s estate.
