-written by Attorney Edouard J.P. Bouquet
An award of alimony in the District of Columbia incident to a divorce, legal separation or termination of a domestic partnership is premised on the notion that one spouse or domestic partner is economically dependent or disadvantaged and therefore has a need for support to meet their living expenses; and the economically dominant spouse/domestic partner, the one with greater income and/or other resources, has sufficient income/resources from which to provide such payments while meeting their own living expenses.
The concept of alimony in the District of Columbia has evolved significantly in the past 30 years. Initially the only type of alimony that was available was what is frequently referred to as permanent alimony. This name is in and of itself a misnomer since alimony awarded by the Court has always been subject to modification or termination. Although it was initially more in the nature of a lifetime payment, the better term to be applied is indefinite alimony.
Accordingly, an award of alimony was essentially an all or nothing proposition. The receiving spouse either got a permanent award or they got nothing. While this seems to suggest that such awards would be more easily obtainable the reality is probably just the opposite and economically dependent spouses often found themselves without any support.
Alimony in the District of Columbia is now largely governed by the provisions of the D.C. Code Section 16-913. Under this scheme, the Court has the ability to award alimony for a term of years which is intended to enable the economically disadvantaged spouse/domestic partner to make as much progress towards becoming self-supporting as they can by re-entry into the work force, education or advancement in their career. This type of alimony is referred to as term-limited in the Code or sometimes as rehabilitative alimony.
The Court still has the ability to make an award of indefinite alimony but is afforded the flexibility to make an award for a period of years and not burden the economically dominant spouse/domestic partner with payment of lifetime allowance to a former spouse who is otherwise able to care for themselves in a manner commensurate with the standard of living established during the marriage.
A third option for the Court is to make a hybrid award which merges both concepts. This enables the Court to wake an award at a higher level in the short term while the economically dependent spouse/domestic partner advances themselves as far as they can. Thereafter, if there would be too great of a disparity in the party’s respective standards of living, the Court can bridge the gap to an extent by awarding indefinite alimony at a rate based on the recipient spouse’s/domestic partner’s then projected need and ability to meet that need.
The Court is given broad discretion in making an award of alimony. While the Court is required to consider a number of factors including the ages of the parties, their physical and mental condition, fault leading to the breakdown, duration of the marriage and standard of living established during the marriage, interpretation of these factors is likewise discretionary. Only in rare circumstances will the Court of Appeals overturn a ruling by the trial court. Accordingly, it is critical to make an effective presentation to the trial court. This can include the appropriate use of experts in areas such as vocational rehabilitation to demonstrate earning capacity or forensic accountants to identify actual income and other resources from which to pay or to obviate the need for an award of alimony.
In certain circumstance where the court has awarded alimony a party can move the Court to modify an award to address a change in circumstances that has arisen since the original award was made. Such changes in circumstances can include the payor spouse/domestic partner suffering a loss of income due to events beyond their control such as becoming disabled, losing a professional license, involuntary termination from employment or as many have experienced, a pandemic. Seeking such relief requires the moving party to demonstrate that the loss of income is not contrived or otherwise voluntary. Modification is also available if the paying spouse/domestic partner can demonstrate that the receiving spouse/domestic partner’s need has been substantially reduced, typically because they are earning more than had been anticipated at the time of trial.
Most cases are resolved by a negotiated settlement between the parties. In such cases, the parties have the option to fashion alimony arrangements that address their particular set of circumstances without the Court’s involvement. Such settlements can include provisions to limit or eliminate the ability to seek modification of alimony payments upwards or downwards or even provide for specific amounts to be paid based on actual income in future years.
Recently the District of Columbia City Council passed a set of proposed modifications to Section 16-913 which could have a dramatic impact on the Court’s ability to make alimony awards. The bill entitled Alimony Justice for Injured Spouses Amendment Act of 2019, (B23-0044) was co-authored and sponsored by 7 of the 13 Members of the DC City Council. The Amendment, if passed would make it so a person found to have committed of an intrafamily offense, effectively an act domestic violence, would be prevented from receiving alimony and other relief. While this is clearly a well-intended device to protect victims of domestic abuse, it does present potential for an unjust result and unintended repercussions if it is actually enacted. An economically dependent spouse could lose control for a moment and be denied alimony after a 30 year marriage for one mistake. Leery of this, judges at the trial level could become overly cautious about entering orders for protection from domestic violence. We continue to monitor this and other activities of the Courts and the City Council.
Negotiating an alimony agreement or litigating an alimony award can be very complicated. It needs to be handled by experienced professionals with an understanding of the nuances of the law as well as the potential pitfalls involved in securing the best possible outcome.