Can a Spouse Receive Alimony After a No Contest Divorce?

By Rob Jennings J.D.

Alimony consists of financial support that one spouse -- or former spouse --receives from another to help compensate for the loss of income experienced as a result of a marital breakup. Although your state's unique family law code and case law will govern when you must present your claim, as a general rule you need to assert it or preserve it before the entry of your divorce decree -- regardless of whether your ex contests the actual divorce.

Uncontested Divorce

The meaning of "uncontested divorce" depends upon the speaker and context in which the term is used. Technically, "divorce" refers to the judicial act of cutting the marriage bond and making you single again; with the advent of no-fault divorce laws in some jurisdictions, divorce decrees are frequently entered without a fight, since litigants generally must prove only minimal statutory grounds such as physical separation for a prescribed time period. A "contested divorce," on the other hand, generally refers to the battles that can ensue over the rights and responsibilities arising out of the marital relationship: child custody and support, property and debt division, and spousal support.

Preserving a Claim

Alimony law varies from state to state, but as a general rule, you will need to preserve your claim before the entry of a divorce decree. You can do this by making arrangements for alimony in a marital settlement agreement approved by the court or a consent order entered by a judge with the approval of both parties. If you and your ex can't agree on alimony, you can preserve your claim by suing for alimony before a divorce decree is entered. The preservation issue can be critical; in South Carolina, for example, your right to request alimony is destroyed by the entry of divorce.

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Alimony By Consent

Even if you and your ex can't initially agree on how much alimony he will pay or whether he will even pay it at all, this doesn't mean that your case will necessarily end up in court. If both of you are willing to share financial information and negotiate, you could create a successful marital settlement agreement through your respective attorneys or the services of a trained family law mediator. While a consent agreement typically requires each party to surrender some ground, negotiated settlements are usually far cheaper than contested court actions.

Court Resolutions

If you can't agree on the alimony issue, a family court judge can decide it for you as long as you've properly preserved your claim. The court will generally examine the income and expenses of both sides to determine whether you need alimony and whether your ex can pay it. The court will also hear evidence relating to issues such as the duration of the marriage, non-economic contributions to the marriage each spouse may have made (such as one party staying at home with the children), and the health, education and earning capacity of each spouse. Alimony trials can be long and expensive, but -- depending upon the figures involved -- the investment can be worthwhile.

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References

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