Spousal Maintenance
- by Eric C. Nelson, Attorney
I. Initial Spousal Maintenance Awards.
Spousal maintenance awards can be difficult to predict, because unlike child support, spousal maintenance is not controlled by any legal guidelines, and both the amount and duration of an award of spousal maintenance are within the broad discretion of the trial court.
Essentially, an award of spousal maintenance requires three showings:
From experience, I have observed the following general parameters for spousal maintenance, with the caveat that there are exceptions to all of them:
The term “permanent” as applied to spousal maintenance is a misnomer. Even so-called “permanent” spousal maintenance awards may be terminated, suspended, extended in length, or reduced or increased in amount, upon proof of a substantial change of circumstances to justify the modification. [4] In practice, this usually means a substantial increase or decrease in the payor or recipient’s income, although a substantial change in expenses can also justify a modification. [5] Retirement is also a common point in time at which to look at a modification of spousal maintenance, but retirement is not in and of itself a magic ticket to termination of maintenance. The Court will look at all relevant circumstances to assess the reasonableness of the retirement at the time thereof.
The only way to legally prevent future modification of spousal maintenance is for both parties to stipulate to a so-called Karon waiver at the time the award is made. [6] This is a great way to avoid having to return to Court to readdress spousal maintenance every time there is a substantial change of circumstances, but it also locks you in, which can bite both ways depending on what the future holds. It is critical to consult an attorney before proposing or agreeing to any Karon waiver.
Spousal maintenance is subject to modification without a motion, based on cost of living increases, once every two years, upon proper legal notice. The basic principle is that spousal maintenance will increase by a percentage equal to the cost of living increase, or the percentage increase in the payor's income, whichever is less. [7]
Footnotes:
Spousal maintenance awards can be difficult to predict, because unlike child support, spousal maintenance is not controlled by any legal guidelines, and both the amount and duration of an award of spousal maintenance are within the broad discretion of the trial court.
Essentially, an award of spousal maintenance requires three showings:
- Need of a party for spousal maintenance.
- Ability of a party to pay spousal maintenance.
- Sufficient length of marriage to establish “entitlement”. [1]
- Length of the marriage.
- Standard of Living during the marriage.
- Income of both parties.
- Living expenses of both parties.
- Age of both parties.
- Property apportioned to each spouse in the divorce.
- Education and employability of the spouse seeking maintenance.
- Any disability status affecting employability.
From experience, I have observed the following general parameters for spousal maintenance, with the caveat that there are exceptions to all of them:
- a marriage of less than 5 years usually means no spousal maintenance.
- if you’re in your early 40s or younger, the Court will expect you to obtain employment and become self-supporting at some point, whether after re-education or immediately.
- for traditional marriages of 25 or more years, an award of “permanent” spousal maintenance is likely (assuming a sufficient need, ability to pay, and disparity of incomes).
The term “permanent” as applied to spousal maintenance is a misnomer. Even so-called “permanent” spousal maintenance awards may be terminated, suspended, extended in length, or reduced or increased in amount, upon proof of a substantial change of circumstances to justify the modification. [4] In practice, this usually means a substantial increase or decrease in the payor or recipient’s income, although a substantial change in expenses can also justify a modification. [5] Retirement is also a common point in time at which to look at a modification of spousal maintenance, but retirement is not in and of itself a magic ticket to termination of maintenance. The Court will look at all relevant circumstances to assess the reasonableness of the retirement at the time thereof.
The only way to legally prevent future modification of spousal maintenance is for both parties to stipulate to a so-called Karon waiver at the time the award is made. [6] This is a great way to avoid having to return to Court to readdress spousal maintenance every time there is a substantial change of circumstances, but it also locks you in, which can bite both ways depending on what the future holds. It is critical to consult an attorney before proposing or agreeing to any Karon waiver.
Spousal maintenance is subject to modification without a motion, based on cost of living increases, once every two years, upon proper legal notice. The basic principle is that spousal maintenance will increase by a percentage equal to the cost of living increase, or the percentage increase in the payor's income, whichever is less. [7]
Footnotes: