All About Alimony – By, Columbus, Georgia Lawyer Mark Jones
All About Alimony
Columbus GA Divorce Lawyer Mark Jones Discusses Alimony
I remember talking to my wife’s uncle before I came down to Columbus, Georgia to work for a judge. This was probably eight years ago. I was ecstatic that I had got the job, and I announced boldly to my uncle in law, “I will never recommend that the judge award alimony.” That’s easy to say when you are young, foolish, and you don’t know a thing about the messiness of a divorce and dividing up the lives of two people. But as I started working for the judge, a funny thing happened. I saw a lot of people get divorced, and then I saw a lot of disparity in incomes between those people. And then I started to wonder, “how is this person going to get back on their feet after they split?” In many cases, an award of spousal support in the form of alimony is warranted. In many it is not. So what is all this fuss about Alimony?
What is Alimony?
In Georgia, alimony is a form a spousal support after the divorce of the spouses. Alimony is a fluid concept. It is needs-based. Probably the primary considerations in whether a court will award alimony is the length of the marriage and the earning capacity of the spouse seeking alimony. More than any other factors, in my view at least, these two should guide a judge’s decision in whether or not to award alimony. In fact, the American Law Institute’s Principles of Family Dissolution recommend that Courts use a years-of-marriage-based schedule in determining an alimony award. Basically this makes an award of alimony more akin to formulaic computations similar to a child support worksheet or a sentencing guideline.
In Georgia, the specific statute that addresses alimony in Georgia is OCGA § 19-6-1 (c), which provides that “alimony is to be awarded in accordance with the needs of the party to whom it is awarded and with the ability of the other party to pay.” Among the numerous factors to be considered in determining the amount of alimony, if any, that is to be awarded are the financial resources of each party, including their separate estates, earning capacity, and their fixed liabilities.” Duncan v. Duncan, 262 Ga. 872, 873 (1) (426 S.E.2d 857) (1993).
What are the Defenses to Alimony?
The central defense to alimony in Georgia is the adultery defense. “By statute, a party is not 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.” Peters v. Peters, 248 Ga. 490, 491 (2) (283 S.E.2d 454) (1981). However, the adultery must be the cause of the separation of the parties in order to bar an award of alimony, even if adultery is proven. Clements v. Clements, 255 Ga. 714, 714 (2) (342 S.E.2d 463) (1986) (“The statute does not provide a bar in every instance of adultery. It is a bar only when the adultery has been shown to be the cause of the separation between the parties.”).
What about Attorney’s Fees?
In Georgia, an award of attorney’s fees is prohibited unless specifically authorized by statute. In the domestic relations context, the Georgia Legislature had the incredible foresight of creating a form of alimony via an award of attorney’s fees by the Court. In theory, this permits a spouse with substantially less earning capacity or income to have their soon-to-be ex spouse pay attorneys fees to divorce them! How’s that for some sweet revenge!
Specifically, OCGA § 19-6-2(a) authorizes attorney fees against either party, upon consideration of their financial circumstances, where the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case. An award of attorney fees under the statute is not predicated on the wrongdoing of either party. Cothran v. Mehosky, 286 Ga. App. 640, 641 (649 S.E.2d 838) (2007).
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