Periodic alimony in Mississippi
What do you mean I have to support my ex-spouse!
In a previous post, I said I would talk about alimony in Mississippi more in-depth. Here is the first in a series of articles on alimony. In this post, we will focus on periodic alimony in Mississippi divorces.
First, what is periodic alimony? It is a fixed sum of money paid monthly until such time as the spouse receiving the alimony dies or remarries or the spouse paying the alimony dies. It can be modified with a showing of material change in circumstances. Its purpose is to support one spouse in cases of financial disparity. While some courts have said periodic alimony is intended to allow the spouse to maintain the lifestyle they became accustomed to while married, it is not intended to leave the paying spouse destitute. As one court stated, “the chancellor should consider the wife’s reasonable needs and the husband’s right to lead as normal a life as possible with a decent standard of living.” LaRue v. LaRue The fact is that most divorced couples can not maintain the same lifestyle they had while married given many expenses are duplicated after divorce.
So we know what it is, but how do we know if we have to pay it or whether we get to receive it? Like other family law issues, the Mississippi Supreme Court created a list of factors to guide the chancellors in their decisions. Known as the Armstrong factors, a chancellor considers the following 12 factors:
- Income and expenses of the parties;
- Health and earning capacity of the parties;
- Needs of each party;
- Obligations and assets of each party;
- Length of the marriage (the longer the marriage, the better chance for alimony);
- Presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
- Age of the parties;
- Standard of living of the parties, both during the marriage and at the time support is determined;
- Tax consequences of the spousal support order;
- Fault or misconduct of the divorce;
- Wasteful dissipation of assets by either party; and
- Any other factor deemed to be just and equitable in connection with setting of spouse support.
Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993). In practice, the most common reasons periodic alimony is awarded is a financial disparity between the parties and a long marriage. Here is a classic example of when periodic alimony is awarded.
Husband and wife are married for 15 years when the couple decides to divorce. Husband is a CPA who earns $150,000 a year. Wife is a stay at home Mom raising their three children, ages 13, 10, and 8. She is also a CPA who has not worked in the private sector since their marriage. They have a home with a mortgage, two cars, and a retirement account worth $100,000.00 in the husband’s name. In the divorce, the mother is awarded custody of the children. The husband is awarded visitation and is obligated to pay child support. However, it is apparent the wife needs money to live until she can get back in the workplace and earn a living. There is a financial disparity. One of the options for the chancellor is to order the husband to pay periodic alimony.
The chancellor would apply the Armstrong factors to see if periodic alimony should be awarded. Given the husband is making all the money, both spouses have expenses, and the wife has no means to make a living at the time, then it is very likely the chancellor would award some periodic alimony. If 5 years later, the wife was back in the workforce and making a living as a CPA, this could be a material change in circumstances (depending on the relative earnings and expenses of each party) and the husband could file a motion with the court seeking a modification/termination of the periodic alimony. The award could also be reduced if the husband’s earnings decreased as long as the decrease was not his fault—such as incurring more living expenses or increased expenses due to a second marriage. However, an alimony award can only be modified by the court, not the parties.
On the flip-side, there is always the concern about the paying spouse’s income increasing over the years, but the monthly alimony award staying the same. Also, what about inflation? A dollar today will be worth less 5 years from now. These issues can be resolved with an escalation clause which will be discussed later.
Finally, another creature of periodic alimony is its tax treatment. It is important to consult a tax professional (which I am not) during a divorce to ensure you are aware of the tax consequences of any divorce settlement/award. But generally speaking, an award of periodic alimony is deductible income by the person paying and taxable income to the person receiving. For more detailed information on the Federal tax issues related to alimony, go to www.irs.gov and type “alimony” in the search block or look at Tax Topic 452—Alimony Paid, and Tax Topic 406—Alimony Received, or better yet, contact a tax professional.
The Mississippi Supreme Court and Court of Appeals give chancellors a lot of discretion in alimony. In fact, the Mississippi Supreme Court stated that they will “not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or a clearly erroneous standard was applied.” Mizell v. Mizell, 708 So.2d 55, 59 (Miss. 1998) This is a tough standard—an uphill battle on appeal. Thus, it is imperative the best case is made in front of the chancellor on the initial hearing as you probably will not get two bites at the proverbial apple.
In my next post on alimony, I will talk about escalation clauses.
