Page:The American Cyclopædia (1879) Volume I.djvu/343

ALIMONY 319 for some time a prisoner in the hands of Han- nibal, who appears to have treated him with kindness, giving him an account of his march through Gaul and over the Alps. Alimentus wrote a history of Rome which is quoted by Livy. Only fragments of it are preserved. He also wrote an account of his imprisonment among the Carthaginians. He is highly praised by Niebuhr as an accurate investigator. He wrote also on law and antiquities. The frag- ments of Alimentus still extant are appended to Corte's edition of Sallust. 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 cogni- zance. 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 character- istic 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. Or- dinarily the question of alimony in the United States arises in connection with cases of di- vorce, 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 after- svard, 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 ali- mony 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 ex- ample, 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 Eng- lish law that kind of divorce was unknown un- til 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 safe- guard 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 ali- mony, 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 hus- band 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 prop- erty ; he may be ordered to pay it out of his daily earnings. And the principle is so reason- able 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 de- pends 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 allega- tions. 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 in- creased 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 perma- nent provision made after divorce. In England the proportion of the joint income allowed as alimony is ordinarily, and apart from special reasons either way, about one fifth. In New