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Adultery – Beware its Effects on Alimony

Adultery Does not Always Determine Your Right to Receive or Your Obligation to pay Alimony

Louisiana’s rules on alimony and adultery may surprise you. One spouse’s adultery does not automatically condemn him or her to pay alimony to the other spouse. In fact, a Court may temporarily award the adulterer alimony from the wronged spouse. This state of affairs is the result of Louisiana’s law on spousal support.

In Louisiana, There are two Kinds of Spousal Support

Interim spousal support

Temporary alimony, or “interim spousal support”, is a short-term obligation. Its purpose is to maintain the economic status quo regardless of why the marriage broke up. For example, if a wife is a “stay at home” Mom and the husband is a doctor, the Court may order him to pay her money even if she cheated on him. During marriage, each spouse has a legal duty to financially support the other regardless of fault. But, when the Court signs a divorce judgment, that duty goes away. In most cases, so does the duty to pay interim spousal support.

Courts consider the following factors when deciding if a spouse should receive temporary alimony and, if so, how much:

  • The needs of the spouse asking for it.
  • The ability of the other spouse to pay it.
  • The couple’s standard of living before they separated.

“Fault” in the break-up of the marriage is not on the list. Even a spouse who commits adultery may get interim support.

Final periodic support

Final periodic support is different. Only a spouse who meets two conditions can receive it. The spouse must be:

  • Free from fault in the break-up of the marriage.
  • “In need of support.”

Being “free from fault” in the break-up of the marriage means the spouse’s conduct did not cause the break-up. A husband may be cheating. But if his wife is a physically abusive drug addict, both may be at fault in the break-up. In short, the person seeking final support cannot rely on the other person’s bad behavior to make her case. She must affirmatively prove that her conduct was not a cause of the parties’ separation.

A spouse who is in need and free from fault must still prove how much she should get and for how long. Courts decide the amount and duration of final support payments based on many factors:

  • The parties’ income and assets.
  • Whether a party’s assets can be turned to cash (liquidity).
  • The debts of the parties.
  • The parties’ ability to earn money (earning capacity).
  • Whether child custody reduces a party’s earning capacity.
  • The party’s ability to re-educate or re-train and return to work.
  • The parties’ health and ages.
  • Tax consequences.

This is not an exclusive list. Courts can consider other factors that are not on it.

Final periodic support is limited by the net income of the paying ex-spouse. The most that a Court can award is one-third of the paying spouse’s net income.

If You’re at Fault and Your Spouse is not, What’s Next?

Talk to your lawyer about developing a strategy early in the case:

  • Paying your spouse more than 50% of liquid community assets might accomplish two goals. It may make him feel vindicated. It may also provide him with enough income or means to disqualify him from final support.
  • Think about negotiating a generous monthly support payment for a short time. That might be better than paying a smaller one for life. Spousal support is tax deductible to the payor and income to the payee. Talk to your CPA about whether a support payment may provide tax benefits to you.
  • If you have cash on hand, talk to your insurance agent about an annuity in favor of your ex-spouse. The lump sum cost up front might be less than the total payments long term. Your “ex” might consider an annuity payment as a way to be supported by you even if you die.
Conclusion

Your attorney can help you determine whether you should pay temporary or final spousal support. Armed with the facts and the law, together you can work through the issues that your, or your spouse’s, sexual misconduct during marriage have created.

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