McFarling Law Group represents spouses and former spouses in litigation and settlements concerning alimony and spousal support. Whether you are in an initial divorce or modification proceedings, the alimony recipient or payor, McFarling Law Group can help.
The court can make alimony orders that take over after the case is concluded. This is what people typically think of when talking about alimony. An alimony award should state a monthly amount and how long that amount is to be paid for.
TAX CHANGE NOTE: The new tax law that went into effect the end of 2018 makes it so that for all alimony awards starting January 1, 2019, alimony is no longer taxable to the person receiving alimony and must be claimed as income by the person paying the alimony. For all alimony awards already in effect by the end of December 31, 2018, alimony that met IRS standards remains tax deductible by the payor and taxable to the payee.
The Legal Standard
Although there is no magic formula for determining alimony, the statute provides guidelines to the court in making spousal support determinations. In considering a final alimony award in an initial divorce case, the court must consider the following factors:
NRS 125.150 (1a) provides: Except as otherwise provided in NRS 125.155 and 125.165, and unless the action is contrary to a premarital agreement between the parties which is enforceable pursuant to chapter 123A of NRS:
1. In granting a divorce, the court:
(a) May award such alimony to either spouse, in a specified principal sum or as specified periodic payments, as appears just and equitable…
NRS 125.150 (9) provides: In addition to any other factors the court considers relevant in determining whether to award alimony and the amount of such an award, the court shall consider:
(a) The financial condition of each spouse;
(b) The nature and value of the respective property of each spouse;
(c) The contribution of each spouse to any property held by the spouses pursuant to NRS 123.030;
(d) The duration of the marriage;
(e) The income, earning capacity, age and health of each spouse;
(f) The standard of living during the marriage;
(g) The career before the marriage of the spouse who would receive the alimony;
(h) The existence of specialized education or training or the level of marketable skills attained by each spouse during the marriage;
(i) The contribution of either spouse as homemaker;
(j) The award of property granted by the court in the divorce, other than child support and alimony, to the spouse who would receive the alimony; and
(k) The physical and mental condition of each party as it relates to the financial condition, health and ability to work of that spouse.
In addition to periodic alimony for a set duration, a Court may also award rehabilitative alimony.
NRS 125.150(10) provides: In granting a divorce, the court shall consider the need to grant alimony to a spouse for the purpose of obtaining training or education relating to a job, career or profession. In addition to any other factors the court considers relevant in determining whether such alimony should be granted, the court shall consider:
(a) Whether the spouse who would pay such alimony has obtained greater job skills or education during the marriage; and
(b) Whether the spouse who would receive such alimony provided financial support while the other spouse obtained job skills or education.
11. If the court determines that alimony should be awarded pursuant to the provisions of subsection 10:
(a) The court, in its order, shall provide for the time within which the spouse who is the recipient of the alimony must commence the training or education relating to a job, career or profession.
(b) The spouse who is ordered to pay the alimony may, upon changed circumstances, file a motion to modify the order.
(c) The spouse who is the recipient of the alimony may be granted, in addition to any other alimony granted by the court, money to provide for:
(1) Testing of the recipient’s skills relating to a job, career or profession;
(2) Evaluation of the recipient’s abilities and goals relating to a job, career or profession;
(3) Guidance for the recipient in establishing a specific plan for training or education relating to a job, career or profession;
(4) Subsidization of an employer’s costs incurred in training the recipient;
(5) Assisting the recipient to search for a job; or
(6) Payment of the costs of tuition, books and fees for:
(I) The equivalent of a high school diploma;
(II) College courses which are directly applicable to the recipient’s goals for his or her career; or
(III) Courses of training in skills desirable for employment.
In considering a request to modify a final alimony award, the law provides:
NRS 125.150(8) provides: If a decree of divorce, or an agreement between the parties which was ratified, adopted or approved in a decree of divorce, provides for specified periodic payments of alimony, the decree or agreement is not subject to modification by the court as to accrued payments. Payments pursuant to a decree entered on or after July 1, 1975, which have not accrued at the time a motion for modification is filed may be modified upon a showing of changed circumstances, whether or not the court has expressly retained jurisdiction for the modification. In addition to any other factors the court considers relevant in determining whether to modify the order, the court shall consider whether the income of the spouse who is ordered to pay alimony, as indicated on the spouse’s federal income tax return for the preceding calendar year, has been reduced to such a level that the spouse is financially unable to pay the amount of alimony the spouse has been ordered to pay.
NRS 125.150(12) provides: For the purposes of this section, a change of 20 percent or more in the gross monthly income of a spouse who is ordered to pay alimony shall be deemed to constitute changed circumstances requiring a review for modification of the payments of alimony. As used in this subsection, “gross monthly income” means the total amount of income received each month from any source of a person who is not self-employed or the gross income from any source of a self-employed person, after deduction of all legitimate business expenses, but without deduction for personal income taxes, contributions for retirement benefits, contributions to a pension or for any other personal expenses.
How the Court Process Works
Unless agreed upon, final alimony orders generally only occur after the court conducts an evidentiary hearing and can make proper findings of fact and conclusions of law.
Temporary Spousal Support: During the initial proceedings in a divorce case, the court can make financial orders to support the other party, support the children, or pay the other party’s attorney’s fees. These all fall under the court’s power to make financial orders while a case is going on. During proceedings to modify alimony, the court can make temporary orders modifying an alimony obligation during the time between when the motion to modify was filed and when a final order is entered.
Final Alimony Award in a Divorce: When a party files for divorce he or she can include a request that the spouse pay alimony. This then becomes one of the issues that the court must consider in a final divorce trial.
Modifying Alimony: Unless a decree of divorce states otherwise, alimony is always modifiable. The first step in modifying alimony orders is to file a motion. The motion will result in a hearing wherein the judge will determine whether to proceed further. The judge at the first hearing may deny the motion, send the parties to mediation, set an evidentiary hearing, or gather additional information before determining how to proceed. McFarling Law Group can assist in all phases of the process of modifying child custody from drafting motions and oppositions to putting on the best case at an evidentiary hearing, which is similar to a trial.
Reaching an Agreement
Alimony in the Divorce: At any point in time, parties to a divorce may reach agreements on some or all of the pending issues. If you need help negotiating an agreement or have reached an agreement and simply need to make sure the paperwork is done properly, McFarling Law Group can help.
Modification of Alimony: Unless the Decree of Divorce states otherwise, at any time, Parties can agree to modify alimony both as to amount and duration. This should be done through a stipulation and order signed by a judge and filed with the Court. If you need help negotiating an agreement or have reached an agreement and simply need to make sure the paperwork is done properly, McFarling Law Group can help.
Experienced Attorneys at Your Side
Alimony is discretionary, meaning it is up to the judge to look at the parties, apply the statutory factors; and if the judge determines alimony is appropriate, set an amount and duration. This can lead to drastic differences in alimony awards from judge to judge.
Because alimony is discretionary, it is important to have an attorney who knows your judge’s tendencies on alimony. If you have want alimony, it is valuable to have an attorney who knows your judge is not alimony heavy. It is possible to get a new judge if the timing is right. Likewise, if you are trying to avoid paying alimony, it is helpful to know where your judge stands.
At McFarling Law Group, our divorce lawyers are experienced in all family law matters, including alimony or spousal support. If you would like to schedule a consultation with an experienced divorce lawyer in Las Vegas, NV area, call our office at 702 766 6671.