The path through divorce is often winding, and it leaves many people feeling confused and concerned. Alimony is just one facet of divorce, and its protocols vary from state to state.
Below, we will briefly discuss ways to handle this process in the state of Delaware. If you or your spouse is seeking an alimony award, you can use this article as a guide for knowing what to expect.
Types of Alimony in Delaware
In the state of Delaware, alimony may be referred to as spousal support or maintenance. Throughout this article, we will use these terms interchangeably.
Here is a definition of alimony: Money that one spouse pays to the other, whether by court order or by an agreement between both parties. Alimony was not intended to be a punishment or penalty; rather, it is a means of preserving the lifestyle that was enjoyed when the marriage was viable.
In Delaware, a justice may award interim or temporary alimony during the divorce proceedings, as well as long- or short-term support after the divorce has been finalized.
Generally, alimony awards involve one spouse regularly paying the other a specified amount (e.g., every month) for a predetermined length of time (e.g., three years).
The state of Delaware is strict about laws related to permanent alimony. To be eligible for this type of alimony, marriages must have lasted at least 20 years. But in marriages shorter than 20 years, the awards may not last longer than half of the length of the marriage. For instance, a 4-year marriage may not exceed 2 years of alimony.
Delaware courts see alimony as being a means of rehabilitation. In other words, one spouse is not being paid by the other as a way to support them, per se. Rather, the payor is guiding the payee to a place of self-sufficiency, gainful employment, and financial independence via training, education, and study.
A spouse that is the recipient of alimony in Delaware is obligated to seek and gain employment, along with any necessary education or training that is required for improving the prospects of gainful employment.
The only exception would be if the judge presiding over the case finds that the recipient spouse has an incapacitating or advanced medical condition, disability, or age. Another exception is that the spouse has minor children living with him or her, which creates a short-term delay in finding employment.
Divorcing couples may also draw up their own agreements about the stipulations of alimony, including waiving the rights to support.
Is There a Formula for Alimony in Delaware?
No, you cannot plug numbers into a formula and find out how much your spouse will pay, how long the alimony will last, or how much you will get.
The calculation of spousal support is performed on a case-by-case basis by a Delaware family court justice. He or she will carefully examine your case to make sure it is fair. Then the alimony is awarded at his or her discretion.
Mediation is another method that can determine alimony. Spouses entering into a divorce have the option to create an alimony agreement—by way of litigation in a family court or through a mutual agreement.
In Delaware, a licensed alimony mediator can help the exes reach an agreement about alimony matters, as well as any other issues that are contested (e.g., the division of marital property). This tactic is beneficial, since you do not have to go to court.
Delaware courts are able to award alimony payments that should be paid by either party. The court may also award an interim alimony.
A person may be eligible for alimony for a period that does not exceed 50% of the term of the marriage (unless the marriage lasted for 20 years or longer). In this kind of situation, there is no limit to the duration of alimony, unless the court determines that some limits would be appropriate.
If a person waives or releases his or her right to collect alimony before, after, or during the marriage, he or she is not able to seek it.
Factors That Affect Alimony
A number of different factors are considered when alimony is brought to the table. For instance, the spouse requesting alimony has to prove a few different things to the court:
- The spouse must show that he or she is dependent on the other party for financial support.
- The spouse must show that he or she is lacking enough income to provide for his or her needs.
- The spouse is not able to be self-supporting through gainful employment.
- The spouse must show that he or she is the custodian of a child whose medical issues or circumstances make it necessary for the other spouse to postpone or delay finding work.
The court may award a specific amount of alimony, as well as a length of time that is deemed appropriate and just—without any regard to infidelity or other forms of marital misconduct. Below, you will find the factors that are used to determine how much (and how long) alimony will last.
- The financial sources of the party that is asking for alimony, which includes any marital or separate property that he or she owns and his or her ability to independently and reasonably fulfill his or her individual needs on an independent basis.
- The time needed and the money required to gain appropriate education or vocational training as a way to become self-sufficient and find appropriate, gainful employment.
- The standard of living that was enjoyed during the marriage.
- The length of the marriage.
- The ages and emotional, physical, and mental health of each of the parties.
- The contributions made by both parties during the marriage that impacted their earning capacities.
- The other spouse can meet afford to pay alimony if ordered to do so.
- The tax ramifications of alimony on both parties.
- Whether either party has foregone or delayed economic, work, or educational opportunities during the marriage.
- Any other important factors the court deems appropriate to include or consider as the process continues.
Custodial status is absolutely taken into consideration when alimony payments are calculated in Delaware. These payments are affected by whether the spouse who wishes to receive the support has custody of the children. These spouses may get higher support payments, which is not always guaranteed.
Can Alimony Be Changed?
Unless the couple signs a written agreement that neither party will attempt to modify the alimony award, either spouse may ask the court to modify payments due to a material or circumstantial alteration.
Unless there is a written agreement that indicates otherwise, alimony will end upon the death of either spouse, or upon the remarriage or romantic cohabitation of the recipient spouse.
For the purposes of the termination of alimony, the court will consider the spouse receiving alimony to be cohabiting if he or she is residing with a new romantic partner as a couple. The person receiving the alimony does NOT have to get any financial benefits from the act of cohabiting.
It may also be necessary to change the way a couple does their taxes. In order to create the best tax situation for you and your ex, you will want to speak to your personal accountant or tax preparer.
In most cases, periodic alimony payments are usually taxed as income if you are a recipient, and they are deductible if you are the payor. You may wish to speak with a tax professional about how to structure your payments in a way that is advantageous to everyone.
How Long Does Alimony Last?
In a Delaware family court, the length of time that you will be paying alimony is determined by the justice presiding over your case, and the length of the spousal support award is based on the length of the marriage.
In Delaware, the length of the marriage is an important part of determining how long it will last. For instance, a marriage that lasted for over 20 years could result in payments that last for an unlimited amount of time.
Meanwhile, marriages that are shorter than 20 years have different stipulations. For example, alimony cannot last longer than half the length of the marriage. Therefore, a marriage that lasted eight years cannot exceed four years of alimony payments.
Here is another general rule of thumb that some courts follow: One year of alimony shall be paid for every three years of marriage. However, this rule does not apply to every court or justice, and you can expect the final length of your award to be different from other cases.
Also, remember that alimony ends upon the remarriage of the recipient spouse, or when they begin cohabiting.
What If I Do Not Pay Alimony?
If you fail to pay alimony, the debt you owe is referred to as alimony arrears. These payments may be collected in a variety of ways, including small claims court, wage garnishment, and even mediation.
If you fail to comply with a court-issued alimony order, the payor who failed to make good on his or her promise to pay spousal support could be charged with contempt of court.
Here is one way a person can avoid paying alimony by way of a prenuptial agreement. This contract between spouses deals with financial issues in the marriage, and you both sign it before you get married. These agreements place limitations on alimony, or in some cases, may even waive rights to it. Some states even prevent the use of alimony waivers.
In Delaware, Does Adultery Affect Alimony?
In some states, either spouse’s misconduct during the marriage is taken into consideration, which includes grounds for the dissolution of the marriage.
This misconduct could include abandonment, abuse, fraud, or adultery (i.e., a married person having a sexual relationship with an individual who is not his or her spouse). But many states take a no-fault stance about divorce. In other words, the court does not care about the reasons why the marriage did not last. In Delaware, the only grounds that must be proven are that the marriage is beyond repair and must be dissolved. When deciding whether or not to award spousal support or calculate how long the support will last (as well as the overall amount), judges are not allowed to consider adultery or any other form of marital misconduct.
In Delaware, judges have to make these choices without any nods to marital misconduct. Therefore, alimony orders have to be just (e.g., reasonable and fair to both parties). As a way to make these choices, courts must consider the same factors we have previously discussed.
Some of these factors include:
- The tax consequences involved
- The age, mental health, and emotional and physical condition of the parties
- The ability of the payor to provide for his or her own needs while paying alimony
- The length of the marriage
- The length of time it would take the other spouse to attain sufficient education or training that would then generate self-sustaining alimony
These are just a few factors affecting alimony. Speak to your attorney for full list of related factors.
The path through divorce is difficult, and alimony can be a tough subject to understand. This guide has offered you some useful information, but for the best advice regarding your case, be sure to consult with your legal team.