In our previous article on alimony we discussed the first six statutory factors a Master or Judge must consider when making a determination regarding alimony.  To continue our discussion on the remaining six statutory factors, let’s revisit our friends Jack and Jill.   To refresh your memory:

Jack and Jill married when they were ages 18 and 17 respectively, and have been married for 30 years. Jack finished college and medical school, and is a well-respected neurosurgeon. Meanwhile, Jill gave birth to their first child when she was 18. Jill never finished high school or received any advanced skills training, and was a homemaker for the entire 30 year marriage. Jill is now 47 and has no practical or marketable skills.

The remaining six factors set forth in Maryland Code §11-106(b) are presented below.

            (7)      The age of each party.

In the case of Jack and Jill, they are both in their late 40’s, really the prime of their working life. However, if Jack was 45 and Jill was 65, the court may reach a different decision about what constitutes a reasonable alimony award because Jill’s age, among other factors, may hinder her ability to become gainfully employed.

            (8)      The physical and mental condition of each party.

            In our original example, Jack and Jill are both in good health and have skills that could lead to a fulfilling career and adequate income. Consider how that picture would change if Jack is diagnosed with early onset Alzheimer’s during the couple’s separation. Instead of being able to provide ample income to continue to support Jill, Jack may soon become dependent on somebody, possibly Jill, to support him. 

            (9)      The ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony.

Judges don’t play Robin Hood, out to steal from the rich to pay the poor. Assume Jack makes $250,000 per year as a neurosurgeon, and Jill requests $75,000 in yearly alimony. Before the court can award Jill that amount (or any amount, actually), the Judge or Master must consider the financial impact on Jack, as well as on Jill. If such a high award would make Jack unable to meet his existing financial obligations or would put Jill in a significantly more comfortable financial position than Jack, the court is not likely to award Jill her requested amount of alimony. 

            (10)      Any agreement between the parties.

            Perhaps Jack has decided he would like to marry his young receptionist. After delivering the news to a devastated Jill, he asks her for an easy divorce and tells her that she will never have to worry about finances, promising her $100,000 per year for life. After making the promise, Jack visited his financial advisor to make sure he could afford this pay-off, and drafted an agreement which he presented to Jill. Jill signed the agreement, and each kept a copy. If Jack tries later to modify the Agreement (most likely because it cuts into the funds new receptionist wife thought she would have to spend) will the Agreement weigh into a Judge or Master’s decision to modify the alimony award?  Most definitely!  It will be given a lot of weight because it appears to have been made after Jack’s careful consideration and Jill has acted in reliance of the agreement by giving Jack an easy divorce.

This factor number 10 also covers any prenuptial and antenuptial agreement that the parties may have entered into regarding a specific amount or term for spousal support (alimony).  

            (11)      The financial needs and financial resources of each party, including:

                  (i)      all income and assets, including property that does not produce income;

            For example, during the divorce hearing, it comes out that Jill actually owns two townhomes that are in rentable condition, but have remained vacant for the last 10 years. The Judge or Master can consider the value of these homes, even though they are not currently producing any income, when deciding the most equitable alimony award.

                (ii)      the potential income from a non-monetary award or property disposition;

                If Jill decides that she would rather give the townhomes to Jack as part of the couple’s negotiated property settlement, the court may impute rental income to Jack which could result in a larger alimony award for Jill.

                  (iii)      the nature and amount of the financial obligations of each party;

                Suppose Jack has annual malpractice insurance costing $100,000, and he pays $75,000 for his business mortgage, in addition to $25,000 for the couple’s home mortgage and another $25,000 for assorted financial obligations. Jack’s $250,000 annual salary now looks more like $25,000 of take home pay—not such big bucks. A Judge or Master will take Jack’s financial obligations into account before awarding Jill an alimony amount that could leave Jack unable to meet his existing obligations.

                  (iv)      the right of each party to receive retirement benefits.

            Both Jack and Jill are probably around 20 years away from retirement in our given scenario. Having never worked outside the home, Jill has not had an opportunity to contribute to a retirement account. Jack, on the other hand, may have hundreds of thousands of dollars saved in a retirement account. While Jill is likely entitled to a portion of Jack’s retirement benefits to the extent that they are marital property, Jill’s future ability to save for retirement is probably not nearly as great as Jack’s. A Judge or Master will certainly consider the implications of retirement funds on the parties’ lives as they move forward and age.

            (12)      Whether the award would cause a spouse from whom alimony is sought and who is a resident of a nursing home or similar institution to become eligible for medical assistance earlier than would otherwise occur.

            Assume that during the couple’s separation Jack is in an accident that leaves him partially paralyzed, requiring enough medical care that he moves into a long-term nursing facility. Even though Jack has always been the breadwinner, his new circumstances may have a great impact on the couple’s financial future. A Judge or Master would need to consider the reasonableness of Jill receiving alimony from Jack, now that Jack will need to expend considerable funds to pay for his around the clock nursing care while not becoming a burden on state funded programs. 

            As you can see, alimony is about as far away from a simple calculation as it can be. If you believe you are entitled to alimony, or may have a spouse seek alimony from you, it is crucial that you consult with an attorney. An attorney will be able to discuss how the specific factors of your particular situation may impact an alimony determination.

This is the final article in an ongoing series about Alimony. The previous articles can be found on our blog at www.delaneykeffler.com. As always, we here at Delaney & Keffler, LLC will take the time to fully explain Alimony, and help you obtain beneficial information. Contact us today at 410-535-3476 (FIRM) or welcome@delaneykeffler.com for a free consultation.

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