The definition of alimony is “a husband’s or wife’s court ordered provision for a spouse after separation or divorce.” While this definition is the same no matter where you go, the way the state of Louisiana handles it is unique.
This article will explain the basics of what you can expect as you work through your own situation.
Types of Alimony in Louisiana
In the state of Louisiana, there are two types of alimony, sometimes called “spousal support.”
The first is known as “temporary support,” or in legal terms, alimony pendente lite. This just means alimony pending litigation. It is awarded to the spouse who does not possess a sufficient amount of income for his or her well-being during the divorce process.
The biggest factor for consideration here is the standard of living that was present when the marriage was intact. Temporary support is a way to maintain the lifestyle of both spouses’ living conditions to a reasonable extent.
The second type of alimony that you may encounter is called permanent alimony, or “post-divorce spousal support.” This is designed to provide the spouse with a lesser financial situation the basic necessities of life after divorce. This is designed for people who meet certain guidelines.
For Louisiana, these guidelines are the following:
- They are free from fault in the reason the marriage was not viable.
- They do not have the means to support themselves.
It is important to recognize that the fault of the paying party is not relevant when it comes to the issue of spousal support. The spouse in need must be able to show that he or she is free from any fault, but it does NOT matter whether or not the paying spouse is at fault or not.
Do also take note that, when it comes to determining whether or not a party has the means to support themselves or not, a court may allocate some income to the party in need above his or her actual income if the spouse in need is unemployed or underemployed voluntarily.
In terms of fault, there are no statutory guidelines in deciding what comprises fault for alimony purposes. However, courts have commonly used jurisprudence and also former articles of the Civil Code Articles dealing with fault in the divorce’s context to decide the issue’s outcome.
How Does the Court Decide How Much Will Be Awarded?
There is really no clear-cut answer in determining how much alimony will be paid. The amount of temporary spousal support awarded depends upon the standard of living that was in place during the marriage.
The amount of post-divorce spousal support that is awarded is based upon the less-financially-sound party’s needs as well as the payor’s ability to meet these payments. Take note that the same rule for “voluntary” unemployment and underemployment of the ex-spouse in need can also apply to the payor.
If the payor reduces his or her income on purpose in an attempt to lower the amount of alimony they are ordered to pay, the court can attribute that particular party’s “potential income” to him or her, regardless of whether or not the payor is actually earning that potential.
When it comes to changing alimony, you can do so if a “material change in circumstances” takes place. This can be a change for either party – the payor’s ability to pay the amount ordered, or the need of the party receiving the payments.
One example of such an occurrence would be the receiving party finishing schooling or vocational training and gaining the ability to earn a better income.
How Long Does Alimony Last?
This depends upon the alimony that is offered. Temporary spousal support stops when the marriage is officially dissolved. Post-divorce spousal support stops when the receiving party is no longer needy, gets remarried, passes away, or lives in cohabitation with another person – that is, living with another person as if they were actually married.
Parties may also agree to do what is called a “lump sum” alimony upon their divorce. This is essentially a contract between both parties to have the payor pay out a specified amount of money to the other party, on one actual lump sum over a set period of time complete with a payment schedule. This type of alimony comes to an end per the terms of the agreement.
How Is Alimony Calculated? How Is Alimony Awarded?
In the state of Louisiana, a divorced spouse or person going through divorce or legal separation may file for temporary support, or alimony. When this application takes place, there are several circumstances that have to be considered before any judgments are made.
In short, there are no specific formulas or numbers used in the calculation. It is all dependent upon your particular situation.
Ability to Pay
For starters, the fault rule still applies. As discussed earlier, the spouse who seeks alimony must be found not at fault during the divorce. That is critical to their receipt of alimony payments.
One of the main considerations in the calculation of alimony is the ability of each party to keep the same standard of living that they enjoyed over the course of the marriage. Each party’s marketable skills, education, job training, and suitability for the current job market are considered, as well as any training or education needed to gain sufficient skill to enter the workforce and provide for themselves.
The extent to which one spouse puts their own career on hold to support the other’s earning potential is also heavily considered. For instance, suppose a wife worked to help put her husband through school, helping him achieve a career.
How Long Does Alimony Last?
The length of the marriage and the monetary contributions that each spouse made for the marriage’s success and each other’s well-being are also heavily considered. The ability of the party that is expected to pay periodic support to afford these payments is another huge factor in deciding if alimony will be awarded.
If the potential payor is unable to contribute, they may not be required to, but other requirements or restrictions could be made. For instance, assets and properties of both parties involved could be considered as the case progresses, but certain items like belongings that were acquired before or apart from the relationship may not be taken into consideration.
Children and Alimony
Custody is another consideration in the granting of alimony. Custody of any children and any child support that is required between the divorcing parties are two factors that play a huge role in the amount and length of time of spousal support.
If the custodian of the children cannot support themselves due to the children being of a condition or age that hinders the individual’s ability to care for the child – for example, if they must remain home to care for a severely disabled child – it would have a large influence on the case for alimony to be received by the custodian of that child or children.
What if No Agreement is Reached?
If no agreement is reached between the two parties, alimony is then awarded at the final judgement of the justice of the peace and court that is deciding the outcome of the case.
Can Alimony Be Changed?
Louisiana recognizes temporary and permanent spousal support. Remember, permanent support is only given to a spouse who is innocent, or one who is not at fault for the divorce. Once it is awarded in the final divorce decree, support can be modified if there has been a big enough change in the circumstances of one or both of the parties involved.
An innocent spouse may also request the court to make changes to, or amend, the final decree in a way that adds support where there was originally none. This can be done so long as the request is made within three years after the issuance of the final divorce decree.
Refresher: Temporary Support
Remember, temporary support is awarded during the proceedings of the divorce. It comes to an end when permanent support is either granted or denied in the final decree. Many factors are considered in the awarding of such monies like degree of need, ability to pay, health, age, income, length of the marriage, and any existing financial obligations or tax consequences. Child custody is another factor. Awards may not exceed one third of the paying spouse’s net earnings.
Modifications to Alimony in Louisiana
Louisiana will allow a spouse to ask for alimony even after the divorce decree is final. This must be done, however, within the first three years. Existing support can be modified at any time so long as the receiving spouse can prove there has been a substantial change in their circumstances. Some examples of this include an increased financial need, or even a substantial change in income that shows a heightened ability to pay. It should be noted that remarriage of the paying spouse does NOT count as a substantial change.
Support will terminate completely when either spouse passes away, or when the receiving spouse remarries or is considered by a judge to be living in a way that mimics marriage – cohabitating, for example, with another person of either gender.
Petitioning for Changes
In order to modify your alimony, you must provide info about the children, the names of the spouses, and their contact information, as well as their county of residence. The body of the petition must include a statement that the petitioning spouse wants to modify existing support.
The petition must also state the changes in the circumstances as a means of justifying such a modification – examples being increased expenses or lowered income. The petition must also have a street address where the other spouse can be served and ask the court to grant the petition. That particular petition must be filed with the court that was in charge of issuing the final divorce decree.
Additional support will require a petition to make changes to the final divorce decree. This petition must be filed with the court that issued the final decree. It must contain the names of the spouses, their contact info, and the county in which they reside.
It must also state that the spouse who filed the petition was not at fault in the divorce. It must state that support is needed, and why it is needed. There must be a street address included so the petition can be served.
The petitioning spouse must prove to the court that this additional funding is needed. There must be proof of an increased need or a decline in one’s ability to pay. Examples of proof include copies of tax returns, pay stubs, bank statements, and other financial documents that show a declining financial situation.
Proof of an increase in one’s ability to pay will likely require subpoenaing these same documents from the payor spouse, and any receipts from the sale of assets or property. Documents like the ones used in showing a declining financial situation can be used in showing an improved one, too.
Alimony and Adultery
If adultery happened during your marriage, and it happened before you filed for your divorce, that has the potential to be a major influence on whether or not you or your spouse is entitled to an alimony award.
Louisiana alimony law allows for judges to have some leniency in deciding the amount and the length of the award. The law is also very transparent in stating that supported spouses are only entitled to a final award if both of the following statements are true:
- The supported spouse NEEDS the support, and
- The supported spouse considered no fault grounds or marital misconduct (adultery) prior to the filing of the divorce papers
Louisiana courts will prevent spouses from collecting any final alimony if they were found to be at fault for the divorce. In other words, spouses who commit adultery that leads to the breakdown of the marriage are NOT eligible for support in Louisiana.
All in all, we hope this guide has been helpful in providing a basic look at alimony in Louisiana. For the best advice about your own situation, be sure to consult your legal team.