In Oklahoma divorce, separation, and annulment cases, the court can order one spouse to pay alimony to the other spouse. The Oklahoma Supreme Court has explained that “the primary purpose of alimony is to provide for the support and maintenance of the divorced party.”
In Oklahoma, courts are to determine alimony based on two factors:
1. The need of the recipient arising from the marriage.
Note the words “arising from the marriage.” An Oklahoma appellate court has stated that the need for alimony must be “rationally connected to the marriage itself.”
2. The ability of the other spouse to pay.
However, courts have held that ability to pay may not be the sole criterion, for deciding the amount of alimony.
There is no fixed percentage or rule that establishes the amount of alimony. A court is to consider alimony on a case-by-case basis. Courts have great discretion in determining the amount of alimony.
Factors that a court is not to consider:
1. The gender of the spouse seeking the award, is not a factor.
Before 1979, many states, including Oklahoma, awarded alimony only to women. In Orr v. Orr, the U.S. Supreme Court held that this was unconstitutional gender discrimination. Now, a court may award alimony to either spouse, as long as the spouse can prove a need arising from the marriage, and the ability of the other spouse to pay.
2. Marital misconduct is usually not a factor.
In general, a court may not take the misconduct of a spouse into account in determining alimony. However, if the need of one spouse arose because of the misconduct of the other spouse, then the marital misconduct may be a factor in deciding whether to award alimony, and how much to award. But, the purpose of the alimony must still be to provide for the needy spouse, not to punish the other spouse for misconduct. As one court ruled, “Under no circumstances can alimony be used to punish a litigant.”
Factors courts have used in determining the need of the recipient, and ability of the other spouse to pay:
In Bowman v. Bowman, the court listed a number of prior Oklahoma cases on alimony, and described the factors that courts used to determine alimony in those cases.
These are the cases, and the factors, listed in Bowman:
(Note that, in many of the cases, the court uses the word “wife” and “husband.” These cases were decided prior to Orr v. Orr. Nowadays, a court can award alimony based on these factors to either the wife or the husband.)
(1) the wife's loss of the right of inheritance from the husband, Harden v. Harden, 182 Okl. 364, 77 P.2d 721 (1938);
(2) the expectation of a future inheritance of the husband, Mathews v. Mathews, 186 Okl. 245, 96 P.2d 1054 (1939);
(3) the husband's future earning capacity, Jupe v. Jupe, 198 Okl. 100, 175 P.2d 976 (1947);
(4) the husband's present ability to pay, Jupe v. Jupe, supra;
(5) the wife's contribution to the husband's accumulation, DeRoin v. DeRoin, 198 Okl. 430, 179 P.2d 685 (1947);
(6) whether the marriage was one of affection or convenience, Dobry v. Dobry, 203 Okl. 327, 220 P.2d 698 (1950);
(7) the earning capacity of the husband, Funk v. Funk, Okl., 319 P.2d 599 (1957);
(8) the wife's condition and means, Eisenreich v. Eisenreich, Okl., 323 P.2d 723 (1958);
(9) duration of the married life and the ages of the parties, Hughes v. Hughes, Okl., 363 P.2d 155 (1961);
(10) the wife's health, Henley v. Henley, Okl., 428 P.2d 258 (1967);
(11) any future increase in the value of land, Johnston v. Johnston, Okl., 440 P.2d 694 (1968);
(12) the wife's opportunity for employment, Fitzer v. Fitzer, Okl., 460 P.2d 888 (1969);
(13) the wife's ability to obtain gainful employment, Kennedy v. Kennedy, Okl., 461 P.2d 614 (1969);
(14) the mode of living to which the wife had become accustomed during the marriage, Dowdell v. Dowdell, Okl., 463 P.2d 948 (1969);
(15) the probability of the husband's ability to progress financially, Conrad v. Conrad, Okl., 471 P.2d 892 (1969);
(16) the earning capacity of the wife, Conrad v. Conrad, supra;
(17) the wife's ability to make a living before the marriage, Conrad v. Conrad, supra;
(18) the conduct of the parties, Kirkland v. Kirkland, Okl., 488 P.2d 1222 (1971);
(19) the wife's education, Kirkland v. Kirkland, supra;
(20) the age of the children and the need to maintain a home for them, Price v. Price, Okl., 484 P.2d 532 (1971);
(21) the parties' station in life before the divorce, Herndon v. Herndon, Okl., 503 P.2d 545 (1972).
The law does not require a court to consider any or all of these factors. This is merely a list of factors that Oklahoma courts have used in the past, to determine the need of the alimony recipient, and the ability of the other spouse to pay.
Modifying an alimony award
A court may modify the amount of an alimony award, if the spouse seeking the modification can show a permanent and substantial change of circumstances, that changes the need of the recipient, or changes the ability of the other spouse to pay. If one former spouse cohabitates with someone else, many courts have used cohabitation as grounds to modify an alimony award.
Terminating an alimony award
Alimony terminates upon:
1. Remarriage of the recipient (however, if, within ninety days of the remarriage, the recipient filed a motion in court requesting that the payment continue, the court may order that the alimony continue. The recipient must show that he/she still needs support, and that a continuation of support would be equitable.)
2. Death of the recipient, or
3. Death of the payor.
Contact us if you need help with alimony
Alimony is a complicated area of the law. The factors determining the amount of alimony are many, and typically require the help of a family lawyer. If you need assistance with alimony, the Persaud Law Office can help you. Contact us today.
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