Atlanta Divorce Attorney Blog

The short answer to this question is: Absolutely. There is no mandate under Georgia law prohibiting men from receiving alimony as a result of a Georgia divorce. In fact, the law in Georgia is quite clear on this subject. Prior to April 4, 1979, the Official Code of Georgia was worded in such a way that prohibited men from being awarded alimony. So, prior to 1979, alimony was a remedy that only wives could seek upon a divorce.

However in 1979, Georgia’s laws granting alimony exclusively you the wife were held unconstitutional by the United State Supreme Court in the case of Orr v. Orr, 440 U.S. 268 (1979). In response to the Supreme Court’s ruling, Georgia’s legislature modified the section of the Georgia Code regarding alimony to read as follows:

(a) Permanent alimony may be granted in the following cases:
(1) In cases of divorce;
(2) In cases of voluntary separation; or
(3) Where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse.
(b) A grant of permanent alimony may be enforced either by writ of fieri facias or by attachment for contempt.

O.C.G.A. § 19-6-4. As is evidenced by the gender neutral wording of this statute, Georgia’s law now requires that the principles of liability for alimony to apply equally to women as well as men.

As a young Georgia divorce attorney, I have found that it is not at all uncommon for a Georgia court to grant alimony to men in appropriate situations. Although many individuals maintain the stereotype that alimony is an award that should exclusively be awarded to women, the law of Georgia disagrees. If you are going through a divorce and are curious as to whether alimony may play a factor in your divorce action contact our Atlanta Divorce Team.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

Alimony, also called spousal support or spousal maintenance, includes payments made by one spouse to the other for that spouse’s support following a divorce. Georgia courts are not required to grant alimony in every case, but alimony may be granted under certain circumstances. See our post entitled What is Alimony for more information regarding when a court is most likely to grant alimony.

Alimony payments are tax-deductible for the spouse making the payments and they constitute taxable income for the spouse receiving the payments. Thus, it is important for both parties, the recipient and the obligated spouse, to keep adequate records of the payments, as one spouse may dispute, or the IRS may challenge, the amounts that were actually paid or received. Without adequate documentation, the obligated spouse may lose the alimony tax deduction or be ordered to pay back support if the other spouse alleges that alimony was not paid. Because keeping records of alimony payments paid and received is so important, we have provided a list showing the documents that the spouse paying alimony should retain as well as the documents that the spouse receiving alimony should retain.

If you are currently making alimony payments to your ex-spouse, you should keep the following documents:

• A list of each payment that shows the date of each payment, the check number, and the address to which the check was sent;
• A copy of each check used for payment. These records should be kept in a safe place, like a fire proof safe or file cabinet. Be sure to note on each check the month for which the support is being paid; and,
• If you pay in cash, ensure that you get a receipt for each payment, signed by the recipient, and keep each receipt for your records. See our post entitled In what form should I make my child support or alimony payment? for details on why cash payments are not advisable.

Be sure to keep these records for at least three years from the date you file the tax returns deducting the payments.

If you are currently receiving alimony payments, you should keep a list that shows each alimony payment received. This list should include the following information:

• The date the payment was received;
• The amount received. Make a special note if the amount is less than the court ordered amount in the event that it is necessary to file a motion for contempt in your case;
• The check number, money order number, transaction number or other identifying information;
• The account number on which any check is written;
• The name of bank from which he check is drawn or money order issued;
• A copy of the check or money order; and,
• A copy of any signed receipt you provided your ex-spouse for any cash payments received.

By A. Latrese Martin, Assiciate Attorney, Meriwether & Tharp, LLC

Question: How do I prevent my ex-spouse from stopping alimony payments?

Answer: If your ex-spouse has a Court Order to may alimony, and a condition has not occurred in the Order that would allow him to terminate the alimony payments (ex: remarriage), then you can file for contempt against your ex-spouse after he stops paying. There is nothing you can do before he stops paying because he has not violated any Order.

Question: Can my attorney of many years, who has seen my mental health records, represent my wife in our separation agreement?

Answer: There is likely a conflict of interest here, especially if your attorney knows information that may impact the divorce proceedings. You may waive this conflict if you would like but, depending on your situation, it may be best for each of you to have separate attorneys.

Question: I want to remove my name from the deed on the house, but how can I make sure that my spouse refinances to remove my name from the home equity loans?

Answer: In this situation, I recommend that the parties arrange to refinance all the loans at once. Both parties can show up to the closing and the quitclaim deed can be signed at the same time the refinance documents are signed. Otherwise, I would not recommend a person signing a quitclaim deed when they still have liability on the house.

The Supreme Court of Georgia recently heard a case addressing the issue of retroactive alimony modification in Georgia. Branham v. Branham, S11A1896 (2012). In that case, under their divorce decree, the husband was required to pay periodic alimony to the wife for 120 months “unless and until Wife dies, remarries, or cohabitates with someone else in a meretricious relationship,” and the wife was required to pay the monthly mortgage on the marital home that she was awarded. Id. Both parties quickly fell behind on these obligations. Id. The husband filed a contempt action against the wife for failing to pay the mortgage and also filed a separate action to cease his alimony obligation, alleging that the wife was cohabitating with someone in a meretricious relationship. Id. The wife subsequently filed a contempt action against the husband for his failure to pay alimony. Id. The trial court heard all three actions together and found both parties in contempt. Id. at 2. In addition, the trial court denied the husband’s motion to cease his alimony obligation, but reduced his obligation for past due alimony to zero. Id.

The wife appealed, contending that the trial court erred by retroactively reducing the husband’s alimony obligation and the Supreme Court of Georgia agreed. Id. The Court quoting long standing Georgia law in its holding: “Retroactive modification of an alimony obligation would vitiate the finality of the judgment obtained as to each past due installment…[A] judgment modifying an alimony obligation is effective no earlier than the date of the judgment.” Id. at 2-3, quoting Hendrix v. Stone, 261 Ga. 874, 875 (1992). In this case, the ruling that husband’s alimony arrearage be extinguished clearly violates this rule, as it modifies a past obligation (i.e. one that had already come due). Thus, the Supreme Court of Georgia reversed the ruling.

In Georgia, a spouse who has an affair risks the affair playing a large role in the outcome of the divorce case, specifically with the issue of support. First and foremost, adultery is an absolute bar to alimony in Georgia. This means that the person who had the affair is not entitled to alimony, whether they need it or not, and will not be successful on a claim for alimony in court.

On the other hand, adultery does not impact child support as this support belongs to the child, not the parent. Thus, anything relating to child support, such as daycare, medical, and extracurricular expenses for the children, will still be up for discussion and will be shared according to the child support worksheets. It should be noted, however, that adultery can affect child custody, which will determine who pays child support. If a parent has committed adultery in the presence of the children, this parent is acting contrary to the children’s best interests (the standard for determining custody in Georgia), which could result in that parent losing a custody battle and then having the obligation to pay child support.

In Georgia, in addition to alimony being subject to modification due to a change in the income and financial status of either former spouse, cohabitation by the payee is also grounds for modification. Georgia law states “the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of a former spouse.” OCGA §19-6-19(b). Cohabitation is specifically defined as “dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person.” Id. Thus, for example, if an alimony payee/former wife is cohabitating with a new boyfriend, the payor/former husband may seek to modify and/or eliminate his alimony obligation under this law.

Though this is a fairly black and white rule, it should be noted that if the petitioner is unable to prove his/her case under these grounds, he/she “shall be liable for reasonable attorney’s fees incurred by the respondent for defense of the action.” Id. Thus, it is best to make sure your former spouse is actually cohabitating, and that you will be able to prove it, before bringing a modification action under this ground.

In Georgia, a judgment for permanent alimony for the support of a spouse “shall be subject to revision upon petition filed by either former spouse showing a change in the income and financial status of either former spouse.” OCGA §19-6-19(a). For example, if the alimony payor loses his job, he may seek a downward modification based upon his decrease in income. In addition, if the alimony payee suddenly receives a large sum of money, through inheritance for example, the payor may seek to modify based upon this change in financial status. Conversely, the payee may seek upward modification if the payor’s income increases or if the payee’s income decreases.

Like child support modifications, no petition for alimony modification may be filed “within a period of two years from the date of the final order on a previous petition by the same former spouse.” Id. It should also be noted that a petition for modification of alimony can only be filed in cases of “weekly, monthly, annual, or similar periodic payments.” OCGA §19-6-21. Lump sum alimony cannot be modified. Id.

The Georgia Supreme Court recently upheld an alimony award for a Wife, despite the fact that the Husband was disabled and unemployed. In that case, the Husband was held in contempt of the parties’ divorce decree for failing to make alimony payments to the Wife. McDonald v. McDonald, S11F0112 (2011). Specifically, as alimony, the Husband was to keep the Wife on his health insurance for 24 months and make her car payment for 12 months. Id. at 3. The Husband appealed, arguing that “the trial court erred in awarding Wife alimony because she failed to show a need for alimony, he had no ability to pay alimony because he is disabled and unemployed, and Wife’s alleged misconduct and the short duration of the marriage made alimony inappropriate.” Id. at 3-4. The Supreme Court of Georgia disagreed with the Husband.

The Court held that the trial court was authorized to make the alimony award because Wife’s disability caused her to need the alimony, and Husband’s disability income, future earnings, and property awarded in the divorce would enable him to satisfy the alimony award. Id. at 4. Thus, the “need for alimony” and “ability to pay alimony” requirements were satisfied. Though Husband’s disability may make it more difficult for him, the Supreme Court of Georgia found that the evidence supported the award, and the trial court did not abuse its discretion in awarding alimony to the Wife. Id.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The eighth factor to be considered is “[s]uch other relevant factors as the court deems equitable and proper.” OCGA §19-6-5(a)(8). Much like the “nonspecific deviation” category in the child support guidelines, this factor is included to cover specific situations that may not have been contemplated by the Legislature. All of the factors under this statute help the court to determine the need of one party for alimony versus the ability of the other party to pay alimony. Every divorcing couple’s situation is unique so as long as any “other relevant factor” helps the determination of this analysis, the court will likely consider it.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The seventh factor to be considered is “[t]he condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties.” OCGA §19-6-5(a)(7). This factor considers the financial position each party will be in after the divorce. In general, the greater the separate estate of each party, the less need there is for alimony. However, there is also a greater ability to pay alimony if a party has separate assets from which he/she can draw income. In regard to considering a spouse’s earning capacity post-divorce, the Georgia Supreme Court has stated: “Certainly a wife who has training and skills which could be used to command good earnings but which were not used, because the husband prohibited her from working, will find years later that she has lost her formerly competitive position in the labor market.” Moon v. Moon, 237 Ga. 635, 636 (1976). In a situation such as this, alimony may be awarded to allow the wife time to become competitive in the labor market again.