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La. Civ. Code Ann. art. 160 (as amended) states: When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse's earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant. In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances. This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.
Defendant Mr. Arrendell had a net income of $ 1,750 per month from his employment. Plaintiff Mrs. Arrendell was not employed and had no income. Plaintiff sought an order of alimony pendent lite from defendant husband and the trial court awarded her $ 750 per month. The district court considered the plaintiff’s earning potential in determining the level of alimony. Plaintiff appealed.
Did the district court err in taking into account her earning capacity when she was not employed and had no earnings?
The court amended the judgment to increase the award to $ 900 per month.
Neither the brevity of the marriage nor the claimant spouse's capacity to earn a gainful wage are factors to be considered in setting alimony pendente lite. In determining the sum to which the claimant spouse without sufficient income was entitled, as of the time the rule was tried, during the litigation period, the capability of the claimant spouse to obtain employment producing some income at a future time was not an appropriate consideration.