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Permanent Alimony

PERMANENT ALIMONY

In Nevada, Alimony comes in various shapes and sizes. Generally speaking we have "temporary maintenance" which is support one spouse will provide to the other during the pendency of divorce proceedings. We have "rehabilitative alimony" which is support one spouse provides to the other sufficient to provide him or her with the resources necessary to develop suitable skills so that such spouse can go to or return to the workforce and provide for his or her own sustenance. We have "Alimony" or "spousal support" which is support one spouse provides to the other post-divorce, typically in a set amount of money to be distributed on a monthly basis over a specific period of time. And finally we have what we is called "permanent alimony". For a more thorough understanding I suggest you read some of the Nevada cases which I have cited below.

Generally speaking an award of "permanent alimony" will not be granted unless the requisite facts are apparent. The first fact necessary is that the marriage be of sufficient duration. Generally speaking a "long-term" marriage is a requisite. In the case of Ellett v. Ellet, 94 .34, 573 P.2d 1179 (1978) the parties had been married for a total of 28 years. The court there decided that 28 years was sufficient for an award of permanent alimony. The Ellet court went on to state that other factors to consider included the husband's income, his earning capacity, his age, health and ability to labor; along with the wife's age, health, station and ability to earn a living. The court cited to the infamous Buchanan factors. These are the factors derived from Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974). Other cases on point include Sprenger v. Sprenger 110 Nev. 855 (1994) and Heim v. Heim 104 Nev 605 (1998). These cases all suggest that you must have a marriage of at least 20 years to qualify as a "long-term" marriage or a marriage of sufficient duration to qualify for permanent alimony. Thus it seems that the one requirement which cannot be escaped for purposes of attaining permanent alimony is a long-term marriage. After it has been determined that the marriage is one of sufficient duration the court will go on to look at the typical alimony factors found in cases such as Buchanan and Sprenger, cited above. Of course, the parties are always free to stipulate to a permanent alimony award. Often times will do this in lieu of a property settlement award so that such payments do not expire upon remarriage of the recipient spouse.

The question then becomes, what is permanent alimony? Permanent alimony is alimony that continues until death of the obligor spouse or recipient spouse, whichever occurs first. This is in contradiction to regular alimony which ceases upon remarriage of the recipient spouse. Nev. Rev. Stat 125.150(5) specifically states that "alimony" will cease upon death of either spouse or remarriage of the payee spouse. The Waltz v Waltz 110 Nev 605 (1994) case dispelled the notion that all alimony must cease upon remarriage. In Waltz the Nevada Supreme Court stated that the statue specifically stated that "alimony" will terminate upon remarriage of the payee spouse. The court held that this statute only applied to "alimony" which is all that the statute specifically addressed. In the Waltz case the parties had stipulated to "permanent alimony" which Nev. Rev Stat 125.150(5) does not specifically address. Thus the Supreme Court found that it was not bound by the prohibiting language of the statute.

Alimony is generally modifiable upon a change of circumstances of the parties. Thus if the obligor spouse has a substantial change in income, whether that be an increase or decrease in income then the payee spouse can request modification. Likewise, if the payee spouse has a change in income, in either direction, a modification may be in order. Thus the amount of alimony can be modified at any time. Typically a 20% change in income will be found to be sufficient for this modification. In addition, an alimony award can be terminated at any time given a change in financial circumstances.

This is not the case for permanent alimony. With regard to permanent alimony, modifications will not be had. Thus these awards will not be terminated because of a change of circumstances and they will not be modified up or downwards with respect to payment amount. It is important, as counsel, to remember that this can be a double edge sword. A permanent alimony award may prevent the obligor spouse from modifying his obligation downward in the event his income wanes in the future. This of course provides security to your recipient spouse client. However, the same permanent alimony order will prevent an upward modification in the event the obligor spouse has an increase in income. Incomes typically go up with age. Thus one must consider the trade-off between security of incoming alimony payments vs. the inability to modify those payments upwards in the event of an increase in future income of the obligor spouse.

It is important to note that in the Waltz case, discussed above, the Supreme Court of Nevada found the permanent alimony payment agreed upon in the Divorce Decree to be in substance a property settlement payment. Essentially, the military pay center couldn't pay out the husband's interest from his military pension to his spouse given the fact that the parties marriage was for a period of less than ten years. As a result the parties chose to label the ex-wife's community interest in the pension as "permanent alimony". In effect it wasn't alimony at all but this was the method the parties chose to effectuate the property equalization payment.

The Waltz case is from 1994. I have fond no other case on point in Nevada regarding when a permanent alimony award can or cannot be modified. Thus from a reading of Waltz one could be lead to believe that the court only found the provision to be non-modifiable because the provision was made for purposes of satisfying a property settlement agreement. Of course, property settlements are not subject to modification such as alimony awards are. The court didn't clarify if it was ordering that the non-modifiable language stand because it was effectively a property settlement provision disguised as alimony or simply that the parties' intent was for it to be non-modifiable and their intent would suffice despite the underlying purpose of the award.

That being said I think it is safe to say that the Nevada courts will allow for permanent alimony awards to not be disturbed as long as the intent of the parties can be clearly made out in the Decree of Divorce. Thus the courts will allow parties to contract as they please as to these "permanent alimony" awards, whether such permanent alimony award is made for purposes of effectuating a property settlement payment or not.

Categories: Family Law