Receive Alimony or Spousal Support Before Your Divorce

Spousal support (also called alimony) is often awarded to the spouse who makes less money. It may be given for many years or for just a short time until the spouse is able to get retraining or get a job to be more financially secure. Since divorce proceedings can take a long time and cause a lot of stress, it's usually easier for the parties to separate beforehand. Spousal support or alimony payments make it possible to move out and live in a safe, secure environment. Find out how to receive alimony or spousal support before your divorce, with or without hiring a lawyer.

STEPS

Evaluating Your Need

  1. List the household budget prior to the separation. This will include both your and your spouse’s income and all expenses that you both incur. Be sure that any joint debts (credit cards or loans in both of your names) and joint assets (bank accounts, etc. that are in both names) are listed and noted as such. This will help you and a court know all of the assets, income, and liabilities there are to work with and remind you to take care of those joint items, as well.[1]
  2. Work out a post-separation household budget. This should include all realistic income and expenses you will need going forward. You may want to consider selling some joint assets or refinancing some joint debts. If so, you should speak with a financial consultant to get a realistic idea of what the new payment amounts are likely to be.[2]
  3. Determine any expenses necessary to get back into the workplace. If you have been a stay-at-home spouse or did not pursue business opportunities because of the marriage, you may be entitled to money to help you get training to re-enter the workplace or enhance your skills to increase your chances of promotion. List out the cost of any necessary training, including books, tuition, transportation, and living expenses while undergoing this training.[3]

Researching the Laws

  1. Consider hiring an attorney. Family law is very detailed and far-reaching. So many different things are likely to impact your case, and judges have great latitude for discretion. If you can afford a local attorney who knows the types of things your judge favors and disfavors, it would be best to hire one. See https://www.wikihow.com/Find-a-Good-Attorney. Even if you cannot afford a full-service attorney, some attorneys provide “unbundled services,” which means they will provide limited services to you, such as
    • Preparing documents
    • Giving you legal advice
    • Teaching you the law as it applies to your case
    • Coaching you through the process
  2. Read your state’s statutes. You can usually find a link to your state’s statutes on the webpage for your state’s legislature, highest court, or governor’s office. Find the statutes dealing with alimony or spousal support. These will usually be found in a chapter entitled something like domestic relations, divorce, or support. These statutes will tell you the types of support available in your state and the requirements for having that support ordered. Alimony or spousal support is rarely calculated on a strict formula. Instead, the judge considers a list of factors and uses discretion to determine how each factor impacts the need for and ability to pay alimony. These factors commonly include:[4]
    • The contributions of each spouse to the marriage, both financial and non-financial
    • The absent time period from the job market
    • The established standard of living through the marriage
    • The tax consequences related to alimony
    • The earning capacities, education, and employability of each party
    • The time and expense needed for the receiving spouse to re-enter the workplace
    • The length of the marriage
    • The emotional and physical health and age of the parties
    • The need for alimony and the ability to pay
    • Any other relevant factors
  3. Search case law in your state. Frequently, terms and phrases in statutes will need to be further defined. Courts make these definitions when cases come before them. Google Scholar has recently added a case law database you can use to search for key phrases to see how courts in your jurisdiction are interpreting each factor.[5]
  4. Put any agreement in writing. If you and your spouse agree to the terms of a separation without divorce, have the agreement reduced to writing and signed in front of a notary public. Again, it can be very beneficial to hire an attorney to create this postnuptial or separation agreement so that it is valid under the laws of your state. You can usually find those laws in the same statutes and case law you searched above.[6]

Filing Your Case

  1. Decide if you need to formalize your separation through the courts. A postnuptial or separation agreement that is not endorsed by the court can only be enforced as a contract, not by contempt of court actions. Also, if you and your spouse cannot agree on the terms of the agreement, you will need to file with the courts if you want a judge to dictate those terms.
  2. Locate the appropriate court. On the website of your state’s highest court, there should be a description of the state court system. Looking at that description, locate the family court or the court of general jurisdiction in your state. Then, locate the court of the same name in your local county or parish. You will likely need to ask for alimony in conjunction with your divorce or separation action, which you will file in in the county in which you or your spouse live. [7]
  3. Locate and complete the appropriate forms. Most states provide pre-prepared forms for family law. These can usually be found on the website for your local court and/or your state’s highest court. You can often get assistance finding and completing forms at your local self-help center. Some states provide an interactive online program that creates your documents tailored to your particular circumstances. The documents you need will probably include:[8]
    • A petition for divorce or support
    • A motion for temporary alimony (pendent lite)
    • A summons or citation
  4. Prepare for filing. Once the appropriate forms have been completed, you will need to sign them. Any forms that have a notary block on them will need to be signed in front of a notary. Make two copies of all documents.
  5. File your documents. Give the original set of documents to the clerk of the court that will hear your case. A filing fee will be charged unless you apply and qualify for a waiver. You can ask the clerk to stamp your copies with the filing date. The clerk will also need to sign your summons or citation, which s/he will return to you.
  6. Serve the other party. Ask the clerk to sign your summons or citation when you file your documents. You need to make a copy of the signed summons or citation for your records. Then, attach the original summons or citation to the copy of the documents for the other parent. The other party must receive these documents usually within 90 to 120 days of the date you file your case. Methods of service are different in each state, and acceptable methods can be found by reading your state’s civil procedural rules. They usually include some of the following. Note that they rarely include you delivering them:
    • You can pay the sheriff’s office to serve them.
    • You can pay a private process server to serve them.
    • You can arrange for a friend or relative (not involved in the case and over 18) to serve them by a method listed in the civil procedural rules. Be aware this person will need to complete a Return or Proof of Service and may need to testify as to how they served the documents.[9]
  7. Wait for the answer. In most states, the other party has 21 or 30 days from the date s/he was served with the petition to file a written answer. You should receive a copy of the answer, but if you do not, call the clerk and ask if it has been received. If no answer was filed, consider filing for a Default Judgment.[10]

Managing Your Case

  1. Participate in discovery. If you need to gather information or evidence to support your case in court, you will do this via discovery. Read the rules governing discovery usually found in the civil procedural rules to learn about discovery techniques and processes in your state. In general, most states allow you to: [11]
    • Require the other party or other potential witnesses to provide you with copies of documents
    • Require the other party to make items or property available for inspection
    • $equire them to answer questions under oath (written or oral).
    • Require the other party to undergo psychological/psychiatric or vocational testing or an evaluation by a professional to determine certain issues regarding alimony (such as ability to work or be rehabilitated) and make a recommendation to the court
  2. Make disclosures. Throughout the case, you will need to make certain disclosures to the other party, and you should request these same disclosures if they are not made voluntarily. If these things are not disclosed prior to trial and the other party objects to their use, you may not be able to present them at your hearing. These disclosures may include
    • Financial affidavits
    • Lists of people expected to testify at trial and what they intend to testify about
    • Exhibits you intent to present at trial, either as evidence or for demonstration purposes.
  3. Read the Rules of Evidence for your state. Be sure you understand them. If you have any questions about them, it is worth paying an attorney for assistance or instruction.[12]
  4. Participate in mediation. Either party can request mediation or the judge can order it without a request from either party. In most states, a court can excuse a case from mediation if the court believes there is risk to either party or mediation will be pointless. In mediation, a neutral third party attempts to bring the parties to an agreement on the issues. There is no need to bring any evidence because the mediator does not make any decisions. The intent is for both parties to compromise a little bit so that the issues can be settled without the need for a trial. In most states, statements made in mediation cannot be used in court, and the mediator makes no statements to the court other than whether mediation was successful. In other states, the mediator will make a recommendation to the court as to how the court should rule on the issues. Be sure you are aware of how mediation is treated in your state.[13]
    • If mediation is successful, the mediator will generally prepare the proper documents, obtain the signature of each party, and submit the documents to the court.
    • If mediation is unsuccessful, the parties simply proceed to court.
  5. Schedule your hearing. Contact the clerk of the court to schedule your hearing. You should be able to estimate to him/her the length of time you anticipate. The clerk may schedule you for a scheduling conference or hearing, during which time, the judge will ask questions to be sure all issues are ready for trial and to determine how much time will be needed for the hearing. You will need to provide notice of the hearing to all other parties. You can do this by preparing a Notice of Hearing or by sending a letter to the other party Ask the clerk if your court provides a form for this. Issue any subpoenas necessary for any witnesses. Your Notice of Hearing or letter should include: [14]
    • Date of hearing
    • Time of hearing
    • Issues to be heard
    • Place of hearing
    • Judge who will preside over the hearing
  6. Dress appropriately for your hearing. On the day of your hearing, be sure you are dressed cleanly and respectfully. If you can wear a suit, do so. If not, clean clothes that would be suitable for the office are acceptable. If you can only wear jeans, be sure they are clean and in good repair. Do not wear:
    • Shorts
    • Flip flops
    • Tank tops
    • Miniskirts
    • Sagging pants.
  7. Behave appropriately at your hearing. Arrive early. Speak only to the judge, not to the opposing party or their attorney. Address the judge with respect, calling him or her “Your Honor” or “Judge.” Stand when speaking. The case will likely proceed as follows, though this can vary under some circumstances:[15]
    • Opening statements of the petitioner (a roadmap of the case and what will be proven)
    • Opening statements of the respondent
    • Witnesses called by the petitioner and cross examined by the respondent.
    • Witnesses called by the respondent and cross examined by the petitioner.
    • Closing arguments by the petitioner (a summary of the trial and arguments as to why the judge should rule in the petitioner’s favor)
    • Closing arguments by the respondent
    • Rebuttal by the petitioner
    • Ruling by the judge
  8. Prepare the order, if tasked. After the judge’s ruling, the prevailing party is usually tasked with preparing any orders. If you submitted proposed orders earlier, the judge may use those. The judge may also have stacks of blank orders on the bench that s/he fills out and signs while making the ruling. If you are tasked with preparing the order:
    • Locate the appropriate order form from the link you located above.
    • Complete the order.
    • Make two copies.
    • File the original with the court.
    • Send a copy to the other party.
    • Keep the other copy for your records.
    • Once the judge signs the order, you can get a copy of the signed order from the clerk.
    • Consider appealing an adverse judgment. If you disagree with the judge’s ruling, you have generally 30 days to file a Notice of Appeal with the trial court. Check your state’s rules of appellate procedure for these deadlines.[16]

Sources and Citations

  1. ↑ http://community.careonecredit.com/balancing_it_all/b/divorce_debt_and_finances/archive/2010/11/24/pre-divorce-budgets.aspx
  2. ↑ http://www.womansdivorce.com/budgeting-income.html
  3. ↑ http://www.masslegalhelp.org/children-and-families/divorce/alimony/rehabilitative
  4. ↑ http://alimonycalculator.us/
  5. ↑ http://legal-dictionary.thefreedictionary.com/Case+Law
  6. ↑ https://www.rosen.com/divorce/divorcearticles/breach-and-enforcement-of-separation-agreements-in-north-carolina/
  7. ↑ http://www.georgiacourts.org/aoc/selfhelp/courts.html
  8. ↑ http://www.judicial.state.sc.us/forms/searchType.cfm
  9. ↑ http://legal-dictionary.thefreedictionary.com/Service+of+Process
  10. ↑ http://family.findlaw.com/divorce/answering-the-divorce-dissolution-petition.html
  11. ↑ http://www.txcourts.gov/media/514725/TRCP_2014_01_01.pdf
  12. ↑ http://kslegislature.org/li_2014/b2013_14/statute/060_000_0000_chapter/060_004_0000_article/
  13. ↑ http://dictionary.law.com/Default.aspx?selected=1233
  14. ↑ http://www.mnd.uscourts.gov/FORMS/court_forms.shtml
  15. ↑ http://www.fljud13.org/Portals/0/Forms/pdfs/fiu/12rules.pdf
  16. ↑ http://www.supremecourt.ohio.gov/LegalResources/Rules/appellate/AppellateProcedure.pdf
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