In a recent case of Nassar and Nassar , the Supreme Court issued an important decision as to the factors governing a trial court's ability to award permanent alimony.

In Nassar , the parties were married in 1993. They had two children, who, at the time of the divorce, were emancipated adults. The parties lived a very modest life style during the marriage. While they were given free housing by the husband's parents, the couple lacked sufficient funds to purchase new furniture and always drove older cars. The wife worked as a waitress at a local restaurant. The husband worked odd jobs as a traveling sales person, tour boat operator and ski ticket clerk.

In 2005 the husband filed for divorce. Neither party alleged the other was at fault for destroying the marriage, and agreed that a divorce can be entered based upon no fault or irreconcilable differences. Following trial, the court awarded the wife permanent alimony in the amount of $1,100.00 per month. That alimony award, the trial court stated, would be adjusted automatically based upon the consumer price index printed in the Wall Street Journal. In making its award of alimony, the trial court stated that the award was appropriate, “given the underlying circumstances giving rise to the divorce.”

On appeal, the husband argued to overturn the trial court's decision. One such argument was that the trial court should not have based its award upon consideration of the fault. At trial, the court heard testimony that at one point during the marriage, the husband became angry and pushed the wife over a chair.

The Supreme Court held that when neither party alleges a fault ground (such as adultery, abuse or drunkenness) and instead, proceeds to trial on irreconcilable differences, evidence on fault conduct during the marriage is inadmissible to show whether an alimony award is appropriate. A trial court is free to consider the parties' relative contributions to the marital estate as a basis to award alimony and negative contributions (for example habitual drunkenness which causes a party to dissipate marital assets) maybe brought to the court's attention even without a fault allegation. However, it is impermissible for the trial court to consider fault grounds, alone, in deciding to award alimony when those fault grounds have not been pled.

The Supreme Court also held that the trial court impermissibly allowed alimony awards to be adjusted automatically based upon the consumer price index. The Supreme Court held that neither party, therefore, is entitled to an automatic adjustment in alimony because of changes in the consumer price index. Instead, the decision to modify alimony must be based upon a number of factors, including, but not limited to the parties' employment, health, age, assets and liabilities.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.