In a Georgia alimony case, what a spouse could earn matters as much as what that spouse actually earns.
What the Statute Says
OCGA 19-6-5(a)(7) requires the court to consider “the separate estate, earning capacity, and fixed liabilities of the parties.”
The Paying Spouse
In King v. King, 239 Ga. 15 (1977), the Georgia Supreme Court held that “[t]he ability to earn an income is one factor which may be considered by the jury in awarding alimony to the wife, and they may award alimony on this basis although the husband may be temporarily impoverished.”
For example, in Worrell v. Worrell, 242 Ga. 44 (1978), the husband was earning about $400 a month in a temporary job but had just received a master’s degree and admitted that someone with his education could earn up to $15,000 a year. The court held that admission was properly put before the jury on his earning capacity. Similarly, in Shepherd v. Shepherd, 201 Ga. 525 (1946), a husband with no property who said his doctors had told him not to work was still ordered to pay, because “[a] reasonable allowance under all the circumstances is proper, even though the husband at the time of the hearing may have no property or employment.”
The Spouse Seeking Support
The same idea runs the other way. In Hogan v. Hogan, 196 Ga. 822 (1943), the jury was properly told to consider the wife’s “ability to earn money, whether or not she is employed, if she has capacity to earn money.” So a spouse who is able to work but chooses not to should expect the court to notice.
These older cases speak of husbands paying wives because only wives could then receive alimony; the statute now applies to either party. Either way, the court is asking what each spouse can do, not only what each spouse is doing now.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!