ALIMONY

The allowance made to a wife out of her husband's estate for her sup- port, either during a matrimonial suit, or at its termination, when she proves herself en- titled to a separate maintenance, and the fact of a marriage is established. Alimony is an allowance out of the hus- band's estate, made for the support of the wife when living separate from him. It is either temporary or permanent. Code Ga. 1882, § 1736. The allowance which is made by order of court to a woman for her support out of her husband's estate, upon being separated from him by divorce, or pending a suit for divorce. Pub. St. Mass. 1882, p. 1287. By alimony we understand what is neces- sary for the nourishment, lodging, and sup- port of the person who claims it. It includes education, when the person to whom the ali- mony is due is a minor. Civil Code La. art. 230. The term is commonly used as equally ap- plicable to all allowances, whether annual or in gross, made to a wife upon a decree in di- vorce. 107 Mass. 432. Alimony pendente lite is that ordered dur- ing the pendency of a suit. Permanent alimony is that ordered for the use of the wife after the termination of the Buit during their joint lives.

The allowance which a husband by order of court pays to his wife, living separate from him, for her mainte- nance. 2 Bish. Marr. & D. 851; Lloyd, Div. 212; 55 Me. 21; 36 Ga. 286. It is also commonly used as equally ap- plicable to all allowances, whether annual er in gross, made to a wife upon a decree of divorce. 107 Mass. 433; 9 Ν. Η. 809; 88 Vt. 248; 28 Ind. 291. Alimony pendente lite is that ordered dur- ing the pendency of a suit. Permanent alimony is that ordered for the use of the wife after the termination of the suit during their joint lives. To entitle a wife to permanent alimony, the following conditions must be complied with. First, a legal and valid marriage must be proved; 1 Rob. Eccl. 484; 2 Add. Eccl. 484; 4 Hen. & M. 507; 10 Ga. 477; 5 Sess. Cas. N. B. Sc. 1288; 24 III. App. 165. Second, by the common law the relation of husband and wife must continue to subsist; for which reason no alimony could be awarded upon a divorce a vinculo matri- monii, or a sentence of nullity; 1 Lee, Eccl. 621; 1 Blackf. 360; 1 Ia. 440; Saxt. 96; 13 Mass. 264; 18 Ma. 308; 4 Barb. 295; 1 Gill & J. 463; 8 Yerg. 67. This rule, however, has been very generally changed by statute in this country; 2 Bish. M. & D. § 376. Third, the wife must be separated from the bed and board of her husband by judicial decree; voluntary separation, for whatever cause, is insufficient. And, as a general rule, the alimony must be awarded by the same decree which grants the separation. or at least in the same suit, it not being generally competent to maintain a subse- quent and independent suit for that pur- pose; 9 Watts 20; 27 Miss. 630, 692; 21 Conn. 185; 1 Blackf. 360; 8 Yerg. 67. The right to alimony need not be determined in the suit for divorce, if such right is reserved in the judgment; 188 N. Y. 272. Fourth, the wife must not be the guilty party: 1 Paige, Ch. 276; 2 Ill. 242; Wright, Ohio 514; 6 B. Monr. 496; 11 Ala. N. S. 763; 24 Ν. Η. 564; 40 Ill. App. 73; 138 Ind. 122; but in some states there are statutes in terms which permit the court, in its dis- cretion, to decree alimony to the guilty wife; 2 Bish. M. & D. 878; [1892] Prob. Div. 1; Lloyd, Div. 222; and continued adultery of wife after divorce, is no ground for va- cating a previous order allowing her per- manent alimony; 85 Ill. App. 544. In California, a divorce having been de- creed against a non-resident, an order for alimony and for custody of children was vacated on appeal. 33 Am. Law Rev. (July, 1896) 604, q. v. for an elaborate dis- cussion and criticism of this ruling. Alimony pendente lite is granted much more freely than permanent alimony, it being very much a matter of course to allow the former, unless the wife has suffi- cient separate property, upon the institution of a suit; 1 Hagg. Eccl. 778; 1 Curt. Eccl. 444; 2 B. Monr. 142; 2 Paige, Ch. 8; 11 id. 166; 40 III. App. 202; 87 id. 491; either for the purpose of obtaining a separation from bed and board; 1 Edw. Ch. 255; a divorco a vinculo matrimonii; 9 Mo. 539; 18 Me. 308; 1 Bland, Ch. 101; or a sentence of nullity, and whether the wife is plaintiff or defendant. The reason is, that it is im- proper for the parties to live in matrimonial cohabitation during the pendency of such a suit, whatever may be its final result; 1 Sandf. Ch. 483. She need only show prob- able ground for divorce to entitle her to alimony; 24 Ill. App. 431. Upon the same principle, the husband who has all the money, while the wife has none, is bound to furnish her, whether plaintiff or defend- ant, with the means to defray her expenses in the suit; otherwise, she would be de- nied justice; 2 Barb. Ch. 146; Walk. Ch. 421; 2 Md. Ch. Dec. 335, 393. See 1 Jones, N. C. 528. This alimony ceases as soon as the fault of the wife is finally determined; 37 Mo. App. 207. Alimony is not a sum of money nor a specific proportion of the husband's estate given absolutely to the wife, but it is a con- tinuous allotment of sums payable at regu- lar intervals, for her support from year to year; 6 Harr. & J. 485; 9 N. H. 309; 9 В. Monr. 49;6 W. & S. 85; 75 N. C. 70; 12 Fla. 449; 62 Barb. 109; but in some states sta- tutory allowances of a gross sum have been given to the wife under the name of ali- mony; see 9 N. H. 309; 21 Conn. 185; 9 Ohio 37; 47 id. 544; 107 Mass. 428; 40 Mich. 493; 78 Ill. 402; 36 Wis. 362; 23 Ind. 370: 19 Kan.

159; 83 Cal. 460; if in gross it should not ordinarily exceed one-half the husband's estate; 37 Mo. App. 471. It must secure to her as wife a maintenance separate from her husband: an absolute title in specific property, or a sale of a part of the hus- band's estate for her use, cannot be decreed or confirmed to her as alimony; 8 Hagg. Eccl. 322; 7 Dana 181; 6 Harr. & J. 485; 4 Hen. & M. 587; 6 Ired. 298. Nor is ali- mony regarded, in any general sense, as the separate property of the wife. Hence she can neither alienate nor charge it; 4 Paige, Ch. 509; if she suffers it to remain in arrear for more than one year, she can- not generally recover such arrears; 8 Hagg. Eccl. 822; if she saves up anything from her annual allowance, upon her death it will go to her husband; 6 W. & S. 85; 12 Ga. 201; if there are any arrears at the time of her death, they cannot be recovered by her executors; 8 Sim. 321; 8 Term 545; 6 W. & S. 85; as the husband is only bound to support his wife during his own life, her right to alimony ceases with his death; 1 Root 349; 4 Hayw. 75; 4 Md. Ch. Dec. 289; 33 W. Va. 695; 23 Ill. App. 558; and as it is a maintenance for the wife living sepa- rate from her husband, it ceases upon recon- ciliation and cohabitation. So also its amount is liable at any time to be increased or diminished at the discretion of the court; 8 Sim. 315, 321, n.; 6 W. & S. 85; and the court may insert a provision in the decree allowing any interested party to thereafter request a modification of the amount al- lowed on account of changed conditions; 59 Hun 621. The preceding observations, however, respecting the nature and in- cidents of alimony should be received with some caution in this country, where the subject is so largely regulated by statute; 10 Paige, Ch. 20; 7 Hill 207. In respect to the amount to be awarded for alimony, it depends upon a great variety of considerations and is governed by no fixed rules; 4 Gill 105; 7 Hill N. Y. 207; 1 Green, Ch. 90; 1 Iowa 151; 10 Ga. 477. The ability of the husband, however, is a circumstance of more importance than the necessity of the wife, especially as regards permanent alimony; and in estimating his ability his entire income will be taken into consideration, whether it is derived from his property or his personal exertions; 8 Curt. Eccl. 3, 41; 1 Rich. Eq. 282: 2 В. Monr. 370; 5 Pick. 427; 1 R. I. 212; 28 Neb. 843; 48 Mo. App. 668. But if the wife has separate property: 2 Phill. 40; 2 Add. Eccl. 1, or derives income from her personal exertions, this will also be taken into account. If she has sufficient means to support herself in the rank of life in which she moved, she is entitled to no ali- mony: 49 Mich. 504; 75 N. C. 70; 1 Cur- teis, Eccl. 444; 2 Hagg. Consis. 203. The method of computation is, to add the wife's annual income to her husband's; consider what, under all the circumstances, should be allowed her out of the aggregate; then from the sum so determined deduct her separate income, and the remainder will be the annual allowance to be made her. There are various other circumstances, however, beside the husband's ability, to be taken into consideration: as, whether the bulk of the property came from the wife, or belonged originally to the husband; 2 Litt. Ky. 337; 4 Humphr. 510; 101 III. 416; or was accumulated by the joint ex- ertions of both, subsequent to the marriage; 11 Ala. N. S. 763: 3 Harr. Del. 142; whether there are children to be supported and educated, and upon whom their support and education devolves; 3 Paige, Ch. 267; 3 Green, Ch. 171; 2 Litt. 337; 10 Ga. 477; 68 Hun 87; 100 III. 570; 65 Me. 407; 65 Ga. 476; the nature and extent of the husband's delictum; 3 Hagg. Eccl. 657; 2 Johns. Ch. 391; 4 Des. Eq. 183; 24 N. H. 564; the demeanor and conduct of the wife towards the husband who desires cohabitation; 7 Hill 207; 5 Dana 499; 15 III. 145; 95 Ala. 443; the condition in life, place of resi- dence, health, and employment of the hus- band, as demanding a larger or smaller sum for his own support; 1 Hagg. Eccl. 526, 532: the condition in life, circum-

Maintenance; means of living. An allowance made to a wife out of her husband's estate or income for her support, upon her divorce or legal separation from him, or during a suit for the same. Wharton. Burrill.

A court-mandated allowance made to a former spouse by a divorced or legally separated person. | Nourishment, sustenance, especially for one's spirit.