When married couples divorce, spousal maintenance is an important issue that must be considered.

Spousal Maintenance (commonly known as Alimony in other states) is financial support provided by one spouse to the other spouse, usually in the form of monthly payments, following a divorce. These payments help the receiving spouse achieve self-support.  There is no particular formula to calculate it. Therefore, it is extremely important to obtain legal advice before going through a divorce.

Amount and duration are two key components in a spousal maintenance award.

Generally, depending upon other factors, if one spouse has the ability to pay, and the other spouse needs support, a court can award either it temporarily or permanently.

When given on a temporary basis, (also known as rehabilitative maintenance) it is awarded for a specific amount of time to help the receiving spouse attain education, training, or other skills to restore or “rehabilitate” their earning capacity. This temporary support allows a spouse who was unable to support himself or herself financially during the marriage to become financially independent after the divorce.

On a permanent basis the award is for an indefinite amount of time. This is usually done when there is a long-term marriage (e.g. 20 years or more), when one spouse is capable of providing financial support, and when one spouse is incapable of self-support based on what he or she earned during the marriage.

A court looks at several factors when setting the support amount. In regard to the spouse making the request, a court will look at their:

  • Financial resources, including property
  • Ability to meet needs independently
  • Probability of completing education or training given age and skills
  • Probability of becoming fully or partially self-supporting given age and skills
  • Time necessary to acquire education or training for employment
  • Lost earnings, seniority, retirement benefits, and other employment opportunities foregone during the marriage
  • Age and physical and emotional condition

A court will also look at other issues, including:

  • Standard of living established during the marriage
  • Duration of the marriage
  • If one spouse is a homemaker, how long they have been out of the workforce and whether their skills or education are outdated
  • Ability of the spouse to meet their own needs along with those of the spouse requesting support
  • Contribution of each spouse in acquiring property
  • Contribution of each spouse in the appreciation in the value of property

A court will not, however, take into account any allegation of marital misconduct.

Spouses can agree to waive spousal maintenance altogether. This means the spouses agree that they do not need financial support from the other. If a spouse waives support, they are unable to return to court at a later date and request maintenance no matter the circumstance. In some cases, a spouse may decide to waive it in exchange for a favorable property award.

A waiver should only be done after obtaining legal advice.

Spousal maintenance is taxable income.  The person paying spousal maintenance to his or her former spouse can deduct it for tax purposes. Likewise, the person receiving the support must add the award to his or her income for tax purposes.  Therefore, when thinking about spousal maintenance, tax consequences must be taken into account.

If spousal maintenance is an issue in your case, you should consult an experienced family law attorney for legal advice.

 

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