Family Law Blog

What to Expect When It Comes To Spousal Maintenance

January 6, 2011

by Elizabeth Feldman

Spousal maintenance, or what use to be called “alimony,” is one of the hottest topics in family law these days.  Often one of the first concerns a spouse has when considering a divorce is whether they will receive or pay spousal maintenance and why; how much they will have to pay or receive, and for how long.  Unfortunately, there is no easy answer to this question, and there is no quick calculation.

When it comes to spousal maintenance there are very few hard and fast rules, but there are a few things to consider.  If you are considering (or going through) a divorce you may want to talk to your lawyer about are the following:

  • Do you and your spouse have a prenuptial agreement? If so, does it cover spousal maintenance? Having a prenuptial agreement may very well control whether spousal maintenance is even an option.
  • Is temporary spousal maintenance an issue while your divorce is pending, and what should it cover?
  • What effect does the length of your marriage have on spousal maintenance? The longer the duration of the marriage the more chance there is that spousal maintenance will be an issue—but there is no magic amount of time which will automatically entitle one to maintenance.
  • Is it possible for you (or your spouse) to work after the separation? This is one of the most important questions when considering maintenance. Whether one or both of the parties are working, what they could earn if they were working, whether they are working at their full potential or are underemployed, whether they need training or schooling in order to work, what they can earn at a job, what their plan is, and how it would affect all the parties, etc.  These are all issues that a court considers when granting or denying spousal maintenance.
  • Is there a calculation that factors in to your spousal maintenance?  If so, what role does it play?
  • If children are involved is their care factored in?
  • Does it make any difference if you or your spouse was a lousy partner?
  • What is the importance of you or your spouse’s expenses in calculating maintenance?
  • What happens if you or your spouse earns more or less after you get divorced, and how does it affect spousal maintenance?
  • Are there any tax consequences with maintenance? Generally the person paying receives a deduction and the person receiving must pay taxes on that income.

There may not be any simple answers, but considering the questions above can give you a much better idea of what to expect.

In considering the duration of a maintenance order, a court will generally consider how long the parties have been married, but also their ages and circumstances.  If a court makes an award of spousal maintenance, the award is usually modifiable and either party can return to court and ask for more or less money, or more or less time.  If, however, the parties reach an agreement on maintenance, they may agree that it is non-modifiable and cannot be changed.

Always remember that there are no set calculations for spousal maintenance.  This is an issue where a Court simply has to consider all of the factors and circumstances of each case individually before making a decision.

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