Family Law on Alimony and Physical Abuse

by Beverly Bird

No-fault divorce went nationwide in 2010 when New York became the last state to recognize grounds such as irreconcilable differences and irretrievable breakdown of the marriage. Some states, such as Florida, recognize only no-fault grounds. It's no longer necessary to prove your spouse did something wrong in order to get a divorce, no matter where you live. However, this doesn’t mean that marital misconduct, such as physical abuse, will not affect issues of alimony, even in pure no-fault states.

Purpose of Alimony

Alimony – also called spousal support or maintenance in some states – prevents one spouse from living in poverty while the other enjoys all the comforts of financial security, especially after a long-term marriage. Courts often award alimony even when fault or marital misconduct is not involved, basing the duration and amount on the lifestyle the parties enjoyed while married.

Types of Alimony

Courts may award alimony temporarily during the divorce proceedings, then terminate it or carry it over into a divorce decree. Rehabilitative alimony supports a spouse for a limited period of time, allowing her to acquire the skills or education necessary to support herself in a lifestyle similar to the marital standard. Courts most often order permanent alimony after long-term marriages when spouses have spent decades relying on the economic partnership. Alimony is frequently a regular payment from the higher-earning spouse to the other, but it can also take the form of a lump sum payment or even additional marital property.

Factors Considered by the Court

In addition to the length of the marriage and marital lifestyle, judges typically consider several other factors when ordering alimony. Most states don't have a statutory, mathematical equation for calculating the duration of the amount, but instead rely on judges to interpret these factors and make an award that seems fair. Other factors can include age, each spouse's earnings potential, and one spouse's contributions toward the other spouse's career advancement, though they may vary from state to state. All factors usually hinge on the financial needs of one spouse and the other spouse's ability to pay.

Marital Misconduct

Marital misconduct, including physical abuse, is another alimony factor that some courts take into consideration. However, alimony awards are rarely punitive. It's not designed to punish one spouse for hurting the other, but rather to ensure an injured or damaged spouse has the financial wherewithal to move on with her life post-divorce. This is particularly true if she's been hurt to the extent that she's physically, mentally or emotionally incapable of supporting herself.

Burden of Proof

Abuse typically falls under the grounds of cruelty in states that recognize fault-based divorce in addition to no-fault grounds. Whether you allege abuse as your grounds, or you present the issue at trial because you've asked for alimony, it's rarely enough to appear in a courtroom when your divorce goes to trial and tell the judge your spouse abused you. You must present proof to substantiate your allegations. You can use photos of your injuries, or hospital and doctor's reports and records. You can use statements or testimony from witnesses who saw your spouse hurt you. You can usually subpoena mental health professionals for testimony as well, if the abuse resulted in therapy or counseling. In the end, it all comes down to whether you can convince the judge of the seriousness of what you endured, so you may need the help of an attorney.