Alimony (Lat. alimonium, nourishment), in law, the allowance which a husband, by order of the court, makes to his wife for her maintenance during her separation from him. Of alimony, as of all matters pertaining to the marriage relation, the ecclesiastical courts in England had in former times exclusive cognizance. No such courts were ever established here, and the jurisdiction in respect to alimony is exercised in our states either under express statutes, or as being included in the characteristic powers of courts of chancery or equity. When the jurisdiction is assumed on the latter ground, the court grants this sort of relief in that class of cases in which the ecclesiastical courts of England would have decreed it. Ordinarily the question of alimony in the United States arises in connection with cases of divorce, partial or absolute. It has been the rule of the law until very recent legislation, especially in the United States, modified it, that all the personal property of the wife at her marriage, and all that came to her afterward, and the substantial benefit of her real estate too, vested absolutely in the husband.
The law therefore put upon him the correlative duty of maintaining the wife according to his condition in life and pecuniary ability; and it is out of this duty that the wife's right to alimony in case of her lawful separation from her husband also arises. Accordingly, whenever a court adjudges or concedes that the wife may live apart from her husband for his violation of his matrimonial obligations to her, it will also decree that he make her a proper allowance for her sustenance. Observing the conditions of alimony as they were defined by the practice of the English ecclesiastical courts, some of our states, Massachusetts and Pennsylvania for example, have held that, in the absence of express statutes, they have no power to grant alimony in cases of absolute divorce; for as in the English law that kind of divorce was unknown until recently, the spiritual courts gave alimony of course only upon divorces from bed and board, or as we call them partial divorces. But in most of the states the statutes explicitly provide for alimony in all divorces. In general, and for obvious reasons, our courts will not grant permanent alimony to the wife when she is the guilty party, though, as a merciful safeguard against her further debasement, they do sometimes make such provision for her.
Nor on other grounds will the courts compel the husband to pay anything when the wife has a separate estate which is withheld by settlement or otherwise from her husband's control, and, considering his means and condition, it yields to the wife as much as she is fairly entitled to.
The provision for the wife may either be made pending a suit for divorce, whether brought by herself or by her husband, in which case it is called alimony pendente lite or pending suit; or it may be permanent, that is, for the term of her separation or for her lifetime, and this sort of alimony is ordered upon the passing of the decree of divorce, whether partial or absolute. As to the alimony pending suit, it is quite a matter of course to give it, whichever party brings the action; though when the husband is plaintiff, the court ordinarily requires as a condition precedent a sworn denial of her guilt ; on the part of the wife, or some other proof of the merits of her case. With this sort of alimony, ordinarily, the court gives a provision for the wife's legal expenses in prosecuting or defending the action. This is only just, for even if the wife is the defendant, she is not yet proved guilty, and to deny her the means of resisting her husband's suit might be to deny her the means of vindicating herself. At all events, if the wife has no means, and the husband has, he must not only support her fairly during the legal proceedings, but also supply her with means for retaining counsel and otherwise paying the legal expenses especially pertaining to the action.
The allowance in these respects does not always depend on the fact whether or not the husband has an accumulated property; he may be ordered to pay it out of his daily earnings. And the principle is so reasonable that in a case where the court could not compel a husband who was plaintiff to pay alimony pendente lite because he had neither' property nor any other resources, it ordered him to suspend his action till he could furnish his wife with the means of defending it. If the husband pay the temporary alimony ordered by the court, he is discharged of all liability for even the wife's necessaries; but he is liable for them if he withholds the allowance, as he is in fact, on general principles, if no alimony has been directed. - The amount of alimony which the court will award pendente lite depends on the circumstances of the case and of the parties. It is larger when the wife is plaintiff than when she is defendant, but even in that case the court takes into consideration the fact that she has not yet proved her allegations. It will be less or more according to her condition in life and her needs.
It will be less if she has a separate estate, and it may be increased or perhaps reduced from the amount first fixed, as the circumstances of the parties may change; and, as a rule, alimony pending the suit is always much smaller than the permanent provision made after divorce. In England the proportion of the joint income allowed as alimony is ordinarily, and apart from special i reasons either way, about one fifth. In New York the courts have been disposed to allow the woman no more than her actual wants require until the final adjudication upon the merits, when the permanent alimony may be fixed from the beginning of the case, and the amount of temporary alimony paid meantime is deducted from it. Nor as to permanent alimony is there any fixed rule governing the amount of it. In England it seems to be the common practice to award one third of the husband's income. American courts have settled upon no customary proportion, though there are numerous cases reported in which the allowance has been fixed at rates between one fourth and one half. The amount is discretionary, and nothing more definite can be said than that it is the design to give such amount as the wife ought to have, regarding all the circumstances, if the marital relation had not been broken up.
By the statutes of most of the states, the wife is entitled, especially in absolute divorces, to recover whatever property she brought to the husband upon the marriage. - The fund out of which alimony is to come is ordinarily the husband's income. The court does not, except when special statutes permit the return of the wife's estate to her, or make similar provisions, turn over to her any specific property. Upon the principle that it is the income which is to respond, it cannot on the one hand avail the husband that he has no invested or permanent property, but his earnings must supply the allowance; and on the other hand, the husband's mere expectations of inheriting property are alike immaterial. The husband's indebtedness should also be taken into account in ascertaining his substantial income and resources. - As the demand or grant of alimony is properly collateral to the principal relief, that of separation or divorce, sought in the action, and as the allowance is not decreed - at least permanent alimony is not - unless the principal relief sought is granted, the application for such maintenance is ordinarily only incidental to the principal suit.
It is commonly made upon a special petition, or allegation of faculties, as the proceeding is termed in England, in which the husband's pecuniary resources are alleged; this he meets with an answer or other counter proof, and the allegations on both sides may be passed upon by the court, or referred for more careful examination to one of its officers, as a master in chancery or a referee. - The remedy for enforcing the payment of alimony, when the order of the court regarding it is disobeyed, may be by proceedings against the husband for contempt, or, according to the practice in different states, execution may issue for the amount in arrears, or an action of debt may be brought; and in the federal courts it has been held that a bill in equity will lie. In some states, again, the charge of alimony becomes a lien on the husband's real estate, or the court may compel him to give security for its prompt payment, or in a proper case the husband may even be restrained by injunction from so disposing of his property as to place it beyond the reach of the court.