Property Division in Lieu of Alimony

[Ed: Originally published on Facebook.]

Yesterday we talked about the interplay of alimony and property division. Often it can make sense to pay more alimony in exchange for a more favorable property division. Note the reverse can be true, in a sense – the court can adjust its property division to make up for the fact it may not be able to award alimony.

Alimony is typically not available to a spouse who is guilty of a fault issue – for example, adultery. In other words, if a spouse has an extramarital affair, and that is the cause of the divorce, then that spouse cannot be awarded alimony in most cases.

Notwithstanding what the parties could get at trial, keep in mind that divorcing spouses could almost always agree to do whatever they want. So even where a spouse cannot get alimony at trial, the other spouse may be better off agreeing to pay alimony anyway. Every case is different, but the moral of the story is this – when considering property issues, don’t forget about alimony as an option, and think about making alimony and property division work together to achieve a good outcome for both parties.

What is “Abandonment”?

[Ed: Originally published on Facebook.]

What is “abandonment”?

Some people are afraid to leave the marital home because they don’t want to be accused of having “abandoned the marriage”. It is true that in many jurisdictions, proving that one spouse “abandons” the marriage or “deserts” the other spouse prevents the abandoning spouse from claiming alimony.

However, abandonment is much more serious than that. In the first place, in most jurisdictions the abandonment has to have been for at least a year. There also has to be an intention not to return to the marriage. That means if there is a good-faith reconciliation, and then the spouse leaves again, the clock starts all over again.

Moreover, if there is some agreement that the parties are separating, especially if it’s on a “trial” basis, that’s not abandonment. If one spouse was forced to leave the marital home – either literally or constructively (because the other spouse has made it intolerable to stay) – that’s not abandonment, either. (In fact, in that case, the argument could be made that the other spouse actually “constructively abandoned” the marriage.)

Separating from your spouse as a prelude to divorce is often good planning, especially if it would make things worse on the spouses and/or the children to stay.