Divorce is one of the lowest moments in any person’s life. This is when everything does not go as you had hoped when you were signing the marriage certificate. Once the divorce has been finalized, you may realize that your financial situation has rapidly deteriorated or is not what you had hoped it would be.
You may have entered a divorce proceeding without the right legal counsel. In other instances, you may have signed the divorce paperwork while under excessive pressure or in extenuating circumstances. This does not necessarily mean that everything is lost. Normally, property terms are “final” after six months. However, some things are usually modifiable going forward, including child custody, child support, and alimony. So with the assistance of the right legal counsel, you may be able to revisit the issue of alimony, even after the divorce has been completed.
Typically, you must solve the issue of alimony with your partner before divorce is finalized. The judge will decide the amount of money to be awarded depending on the situation. Normally, the issue of alimony is raised before divorce proceedings end. However, it is sometimes possible to bring this question up if there have been changes in the circumstances after the case ends, if jurisdiction over alimony was reserved, or the award made was modifiable. One important thing to remember is that only the State which made an original alimony award may modify it — no matter how many years have passed, and even if all parties have left the State of issuance.
What is Alimony?
Alimony is a payment from one spouse to another, sometimes described as “awards in connection with the dissolution of a marriage that are not child support or the division of property.” It can be lump-sum, or periodic, and can be expressly modifiable or non-modifiable, and temporary or “permanent” (until circumstances change).
Typically payments end at the death of either party, or the re-marriage of the recipient, but it can be made to survive re-marriage. It can be ordered to, or from either gender, or in a same-sex marriage case.
Post-divorce alimony (as distinguished from temporary “maintenance” during a divorce) are payments made after divorce is completed, but the amount is normally allocated before court proceedings come to an end. There are three different kinds of post-divorce alimony — permanent alimony, temporary alimony, and rehabilitative alimony. There are also at least seven different rationales for awarding post-divorce alimony — reimbursement, rehabilitative, career asset compensation, loss or waste compensation, loss of earning capacity compensation, divergence in future living standards compensation, and residual equity.
The history and rationales can vary enormously and several have strong historical roots, as the popular conception of alimony awarded to maintain the marital standard of living, or where one spouse may have sacrificed career prospects to raise children.
Alimony can be stipulated by the parties or awarded by a judge at trial; either way, any such award should be based on the past, present, and future financial situation of both spouses. In Nevada, alimony is “no-fault” and not to be awarded, or denied, based on allegations of misbehavior.
Receiving Alimony After Conclusion of Divorce Proceedings
Normally, in Nevada, if alimony is not awarded during the divorce, or reserved for the future, it cannot be brought up later; there may be exceptions to this rule.
The law concerning modifications of alimony is not well developed; there are few standards, but most cases tend to return to the core concepts of “need” and “ability to pay.” Normally, the party seeking to modify must show a substantial change of circumstance.
Normally, courts are more willing to entertain modification requests when the award was imposed by the court as opposed to agreed by the parties.
Often, requesting changes to alimony must be supported by unforeseen and fresh changes in a person’s life. These changes must not have been apparent during the divorce proceedings because if they were fairly “anticipated,” they may not be perceived as changes in circumstances.
A recent change to alimony law came in 2019, when as part of a federal tax reform bill, alimony was made non-deductible by payors, and non-includable by recipients, making its tax effect like that of child support.
The Alimony Case
Every alimony case is different. Normally, “fault” considerations do not enter into the calculus, but the costs, risks, and benefits should be discussed in depth with a family law expert before engaging in alimony modification litigation.
Getting Alimony Payments
In Nevada, payments in accrued alimony that are due and unpaid are automatically “judgments” as a matter of law. Normally, they are subject to the six-year statute of limitations, however — if the payments do not arrive, it is far better to seek their collection quickly rather than waiting years to do so.
Although the court will look into many factors, there are some things you can do to increase your chances of winning the case. Almost always, the income history — and expected future — of both parties is critical to the decision. Like most things, it is better to do it right the first time than to try to fix it after the fact, so the best way of not sweating an alimony modification post-divorce is to calmly, intelligently, and diligently negotiate the alimony issue during the divorce proceeding. When that can’t be done, we can go over your relative chances of successfully changing an order that was not fair when entered, to which became unfair through post-divorce events.
Going through divorce is daunting, stressful, and challenging. It’s possible to make mistakes that will haunt you later.
Divorce laws change frequently, and it will be useful if you get a competent lawyer. We have helped thousands of people get through divorce proceedings. Feel free to call us today.