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How Courts Determine Alimony Orders

Alimony is money paid from one spouse to another in order to even out potential economic effects after a divorce. Sometimes referred to as maintenance or spousal support in Wisconsin, alimony ensures that as individuals, neither person is better off than the other and both can continue the standard of living they are accustom.

The legal basis for alimony is to establish equitability between divorcing parties. A typical example is where one party gives up their career to be a home maker to enhance the ability of the other party to chase higher career levels. Depending on the length of the marriage the court will determine the type and extent of alimony.

  1. length of the marriage (typically 10 years is the magic number)
  2. age and physical and emotional health of the parties
  3. division of property orders (if there is a significant amount of separate property the court may award alimony in lieu of property)
  4. educational level of each party at the time of marriage and at the time of divorce
  5. earning capacity of both parties, educational background, work experience, absence from the job market, custodial responsibilities for children, and expenses necessary to acquire appropriate employment
  6. likelihood the party seeking maintenance can become self-supporting
  7. tax consequences to each party
  8. mutual agreements made by the parties before or during the marriage
  9. contribution by one party to the increased earning power of the other

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Things You Should Know Before You Proceed

Tax Implications of Alimony Payments

Whether paying or receiving alimony payments there are tax implications your should know. Alimony is taxable income for the person receiving the payments and a tax deduction for the person paying. (Child support, unlike alimony, is neither taxable nor tax deductible.)

There are instances where alimony can be classified as nontaxable and nondeductible. However, either way alimony is setup both parties need to classify the support payments the same way. One party can not claim the alimony payments as a tax deduction, while the other spouse claims the income as nontaxable.

Receiving Support Payments

The party receiving support payments needs to consider the tax impacts. When you get paid from an employer, they withhold taxes for you. Your spouse will not withhold taxes for you when writing the support check.

One way to ensure this remains manageable is paying estimated taxes each quarter. This helps avoid a large tax bill at years end. Another option is to increase the withholding amount from your paycheck. However you handle the additional income is up to you, but taking action is better than waiting for the bill on April 15th when you file taxes.

IMPORTANT: If your spouse pays support by paying your expenses (such as mortgages, car insurance, car payments, student loans, etc) on your behalf, these payments will be treated as income and need to be included on your income taxes.

Paying Spousal Support

If you pay alimony, these payments can be deducted from your tax income on your yearly tax return. This is only for alimony payments; child support and property distribution are not tax deductible.

The IRS is very picky when it comes to support payments, especially in the first year. They scrutinize the payments to ensure property distributions and other post divorce expenses are not included as deductible.

IMPORTANT: Agreements calling for larger payments at first and smaller payments later will be scrutinized more throughly. The IRS at times will assume these large upfront payments are in lieu of property or something else. They get particularly aggressive if your agreement calls for a $15,000 reduction or more in support after the first three years.

Another important consideration that should be made when negotiating support payments is ensuring you DO NOT tie the end of the support payments to anything relating to your children (like moving out or finishing college). If audited the IRS may view the support payments as child support instead, which is not tax deductible.

REMEMBER: When making payments to third parties (such as mortgage payments, car insurance, car payments, student loans, etc) for the party receiving alimony these payments should be considered payment directly to the alimony recipient. These payments should be included on your income taxes as a deduction.

Duration of Spousal Support in Wisconsin

When there is a divorce, there is usually a lot of debate about how much the payments will be and for how long the payments need to be made. There is a good chance this will be the most contested aspect of your divorce proceedings. But even after an agreement has been made, you might not be completely in the clear as it could come back to haunt you down the road when one spouse wants to modify the alimony payments or end them all together.

Since alimony is court ordered, alimony payments can’t be modified or terminated at the discretion of one of the spouses. However, if a spouse can make a case and show that circumstances have changed substantially since the original alimony ruling, it is possible the payments can be modified.

Here is a list of factors the court could take into consideration for changing or terminating alimony payments:

  • Increases or decreases in salary
  • Job losses or new job opportunities
  • Major change in cost of living
  • Ex-Spouse moving in with a new significant other
  • Major inheritances

The reasons to terminate alimony are generally much easier to prove. There are two main causes for alimony to be terminated: A death or a new marriage. If one of these two scenarios occurs, do not stop paying your alimony! Doing so could put you in violation of the agreement. Instead, notify the courts of the recent events as soon as you know about them. Show proof of the event and get a court order that allows you to discontinue your alimony payments.

Equal Protection Clause 

The Fourteenth Amendment, specifically the Equal Protection Clause, was set up in 1868 to protect every individual equally by the laws established in the United States.

While the Equal Protection Clause has been around for a long time, only recently have courts applied it to alimony cases.

In the past, sex wasn’t an issue because men typically made more than their spouse so alimony always was paid to the female. But with women having equal stake in the workplace, the Equal Protection Clause will prevent sex from being a factor and instead will force alimony cases to focus on the facts at hand.

Questions Clients Ask About Alimony

Is Wisconsin an alimony state?

Wisconsin is a state where alimony, also known as maintenance, is ordered in some divorces. In some states, alimony may be awarded based on martial fault, such as infidelity, but Wisconsin is a no-fault state. No-fault means the state does not consider martial misconduct, such as adultery or abuse, when determining alimony obligations.

What is considered maintenance in a divorce?

Maintenance in a divorce, also known as spousal maintenance, alimony and or spousal support, is the term many states used to describe financial support paid to an ex-spouse after a divorce. In Wisconsin, the statues renamed alimony, which was the term used for years, to spousal maintenance. All these terms however are synonymous.

Is alimony tax deductible?

When alimony is paid to a spouse or former spouse in accordance with a divorce order, alimony is deductible by the payer and the recipient must include the payments as income. If using a tax system like TurboTax or working with a tax specialist be sure to correctly inform them to ensure lawful tax returns.

Is spousal support taxable income?

Spousal support, also known as alimony and spousal maintenance, is taxable income and must be reported by the recipient. The paying spouse can deducte the alimony paid to the former spouse. This is in accordance with IRS Topic 452.

What is spousal maintenance?

Spousal maintenance, also known as alimony or spousal support, is a term used in describing court ordered payments made from one spouse to another after a divorce. Alimony is not always ordered by the court, however when a significant income disparity exists between divorcing spouses alimony will be an issue that must be settled before a judge will sign off on a divorce settlement.

Is alimony taxed twice?

Under state and federal tax law, alimony is a tax deduction for the payor and is considered taxable income for the recipient. This means the money earned by the payor is not taxed twice, rather it is taxed once. When alimony is received from one spouse, the receiver must remember to set aside monies for taxes to be paid when income tax payments are due.

Is child support and alimony same the thing?

Alimony and child support are often confused. These are two separate and distinct topics. Child support is always ordered in divorce cases when children are involved. Alimony, in some cases, is ordered when there is a large income disparity between divorcing couples. Alimony may however be waived if both parties agree. In states like Wisconsin there is a another option called family support, which combines alimony and child support into one payment.

What is family support?

In some states, like Wisconsin, the court allows for child support and alimony to be combined. This means family support is both child support and alimony combined. Making payments this way allows for the payments to be treated as tax deductible for the payor and taxable income for the recipient.

How long can a person get spousal support?

In Wisconsin there is no official guideline for the length of alimony payments. Generally, in short term marriages (less than 6 years) alimony is usually limited to 2-3 years. In mid-length marriages (7 to 15 years) alimony is typically paid no longer than the length of the marriage. In long term marriages (greater than 16 years) depending on the circumstances alimony could be awarded indefinitely.

How many years do you have to be married to get alimony?

In Wisconsin there are no specific statutes around alimony orders and the ultimate decision is up to the judge if an agreement cannot be made. Generally, to be awarded indefinite alimony a marriage will need to last 17 to 18 years in Wisconsin for a judge to consider an indefinite alimony award.

Can section 71 payments be reduced?

Section 71 payments cannot be reduced. Since section 71 payments are agreed upon in court at the time of divorce, it cannot be altered later. However, just as a payer cannot reduce their section 71 payments, the person receiving the payments is not allowed to ask for more money.

Types of Spousal Support Orders in Wisconsin

Temporary Support

Temporary alimony will be support payments ordered by the court to be paid before the divorce is completed. This order will be determined during what is called a “Temporary Orders Hearing”.

Typically this alimony order occurs during longer divorce trials as a way for a lesser earning spouse to have financial assistance while the divorce is pending. Once the divorce is complete, a different type of alimony will usually be ordered.

Permanent Support

As the title suggests, permanent alimony is alimony paid indefinitely. The only events that would stop permanent alimony from having to be paid is if one of the two spouses dies, or if the recipient ends up remarrying. Although rare, there may be instances where the recipient is still entitled to payment despite remarriage.

Even though this form of alimony is permanent, it doesn’t mean that the amount paid is permanent. That can still fluctuate up and down based on changes of circumstances for the payer or recipient.

Reimbursement Support

Reimbursement spousal support is another temporary form of alimony. What sets it apart from temporary alimony is that it doesn’t have a certain date in which it is terminated. Instead, it is paid until a predetermined amount is paid to the other.

Reimbursement spousal support was created to pay back a spouse for expenses that were the direct result of the other spouse. The most common example is to pay back the cost of higher education if one spouse worked to pay for the other spouse’s education. The person who is responsible for paying the other spouse back can do it all at once in a lump sum or over an agreed upon period of time.

Lump-Sum Support

Lump-sum alimony is a form of alimony that is paid all at once instead of dealing with monthly payments over an extended period of time. Usually lump-sum is a considered form of alimony in cases where a property settlement isn’t an option. Lump-sum is a unique form of alimony in that it is even more permanent than permanent alimony. The reason being is that permanent alimony can still be modified when circumstances change in the former spouses’ lives.

Lump-sum, since it is paid in full, it doesn’t factor in future events or circumstantial changes. Due to the permanent nature of it, you’ll want to make sure an experienced family law attorney has worked with you on your case because the outcome can’t be overturned for any reason.

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