Maintenance (Spousal Support)

The purpose of a maintenance award is to help the receiving spouse become financially independent after a divorce.  Maintenance ends on the death of either party; the remarriage of the receiving party; a date specified in an agreement between the parties; or a date determined by the court, if the matter is determined by a judge. The court awards maintenance in an amount that is fair under the circumstances and that justice requires. In making the decision, the court considers:

• the standard of living established during the marriage
• whether one spouse does not have enough property and income to provide for the spouse’s reasonable needs
• whether the other spouse has enough property or income to provide for the reasonable needs of the other spouse

Whenever there is an issue of maintenance in a divorce case, each spouse must make a complete disclosure of their financial state to the other spouse, including a statement of the spouse’s net worth.  To calculate net worth, you take the total assets and subtract all the expenses and other liabilities.

A court can award temporary maintenance while the case is pending. If a motion is made for temporary maintenance, the court is required to follow a formula to determine the presumptively correct amount unless the court determines the formula is unjust or inappropriate, based on the twenty (20) the factors stated below.

Calculating Maintenance

In making a decision on the amount of maintenance and how long one spouse should pay such maintenance, the court will consider 20 factors:

1. Income and property — the court will look at the income and property of the spouses, which includes marital property distributed in the Judgment of Divorce
2. Length of the marriage — a longer marriage can mean a greater award, particularly if the receiving spouse stayed at home and raised the children
3. Age and health of both parties — if a receiving spouse is in poor health or of advanced age, the award can be affected
4. Present and future earning capacity of both parties
5. Need of one party to incur education or training expenses — a maintenance award can be limited to the time it will take the receiving spouse to obtain skills to maintain himself or herself
6. Existence and duration of a pre-marital cohabitation or a pre-divorce separate habitation — if the couple lived together before marrying, or separated prior to divorce, it might impact how a court views the length of the marriage
7. Acts that have inhibited or continue to inhibit a spouse’s earning capacity or ability to obtain meaningful employment — such acts can include things like physical abuse
8. Ability of the spouse seeking maintenance to become self-supporting and, how long any training might take
9. Reduced or lost lifetime earning capacity of the spouse seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage — if one spouse didn’t go to college or take advantage of other vocational opportunities in order to maintain the marriage, the court can take into account the amount of income the spouse gave up in doing so
10. Where the children live — if children will live with the receiving spouse, and this restricts that spouse’s ability to earn an income, that can be taken into account
11. Need to care for family members other than children — if taking care of other family members (e.g. disabled adult children or stepchildren, elderly parents or in-laws) has inhibited or continues to inhibit a spouse’s earning capacity, the court may account for that
12. Inability of one spouse to obtain meaningful employment due to age or absence from the workforce
13. Need to pay for exceptional additional expenses — for example, for the children, such as schooling, day care and medical treatment
14. Tax consequences to each spouse — maintenance is considered income under the tax code
15. Equitable distribution of marital property — depending on what each spouse received in the court’s distribution of marital property, the court may order maintenance to account for the value of the property. For example, if one spouse receives a large asset, like the marital home, the court may order that spouse to pay an amount to the other spouse to make up for the difference
16. Contributions and services of the spouse seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party — this allows the court to consider the nonmonetary contributions of a spouse to the marriage
17. Wasteful dissipation of marital property by either spouse — if one spouse wastefully spends away the marital estate, the court can take this into account in deciding whether to award an amount to the other spouse to make up for the value wasted
18. Transfer or encumbrance made in contemplation of a matrimonial action without fair consideration — if one spouse sells off or transfers assets just prior to the divorce, the court will treat the sales or transfers in the same manner as it would a wasteful dissipation
19. Loss of health insurance benefits upon dissolution of the marriage — this depends on the availability and cost of medical insurance for the spouses
20. Any other factor the court expressly finds to be just and proper

Legal Editor: Elliot Polland, January 2015