Question:
I recently went to court to have my soon-to-be-ex-wife’s spousal maintenance stopped. The judge agreed with me that she did not meet the requirements, but said there was a difference between spousal support requirements for during and after the divorce.
What is the difference between pre–dissolution alimony and post–dissolution alimony?
Answer:
You have asked the difference between pre-dissolution spousal maintenance and post-dissolution spousal maintenance in the State of Indiana, and if your judge can order you to pay your spouse pre-dissolution maintenance while your case is pending. In Indiana, judges presiding over family law matters have a great deal of “equitable” discretion in how they can craft their orders. In many family law proceedings, the same set of facts, if presented to a different set of judges, could result in very different results depending on the disposition and preferences on certain issues of the presiding judge.
One area in which a Judge’s “equitable” discretion is limited in Indiana, is in the area of “spousal maintenance” as it is called in Indiana. In Indiana, for a judge to award “spousal maintenance” on a post-dissolution basis, the judge must specifically find one of the following factual scenarios exists: (1). The spouse seeking maintenance is “physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected,” or (2). The spouse seeking maintenance “lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse’s needs; and the spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forgo employment.” Additionally, the judge could award “rehabilitative spousal maintenance” for up to three years from the date of the decree, if after considering the educational level of each spouse at the time of marriage and at the time the action is commenced; whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both; the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment. It sounds like the judge agrees with you that your spouse is not eligible for post-dissolution maintenance.
However, on a pre-dissolution basis, Indiana judges have more discretion for “spousal maintenance” because the parties remain legally married until a Decree of Dissolution finalizes the proceedings. For example, a judge could order the equivalent of maintenance, by ordering one party to pay the other spouse’s mortgage or living expenses if the judge believes that the recipient spouse is dependent and without sufficient means to support him or herself. In your case, it sounds like the judge has used his or her equitable discretion to award pre-dissolution maintenance to your spouse. Because your legal marital status remains “married” the judge has the discretion to make this order.
One rule of thumb many family law practitioners look at in advising clients is to consider how the finances were handled by the family prior to the dissolution proceedings and expect that to be continued during the proceedings. So, if it is a situation where one spouse was the sole breadwinner, it may be reasonable to expect that a judge would order that breadwinning spouse to continue to support his or her spouse until the case is resolved and the parties legally become single persons. Because you will continue to have a maintenance obligation until your case is finalized, and also because it sounds unlikely that your obligation will continue on a post-dissolution basis, it may make sense for you to ask the Court to schedule a final hearing. Doing so could allow you the peace of mind in knowing that there will be an end date for your maintenance obligation. Otherwise, you could conceivably continue paying maintenance indefinitely. Additionally, with competent legal counsel, and a well-crafted argument, it is certainly possible to argue for and receive a credit for your pre-dissolution maintenance payments and have that credit applied to your share of marital assets when the court divides your assets and liabilities. Finally, I would encourage you to contact a tax professional to explore any tax benefits or deductions you may be entitled to for the maintenance payments you are making, as maintenance is generally a tax deductible event. The best advice is to seek out competent legal counsel, particularly one who limits their practice to domestic litigation.
Although I practice law in Indiana, I cannot give you legal advice without thoroughly reviewing your case. Do not rely on this information as establishing an attorney-client relationship. Contact an attorney immediately for assistance. Cordell & Cordell, P.C. does represent clients in Indiana. Thank you for submitting a question to Cordell & Cordell, P.C.
Jason P. Hopper is an Associate Attorney in the Indianapolis, Indiana office of Cordell & Cordell, P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Hopper is licensed in the state of Indiana – All State and Appellate courts, US District Court Northern District Indiana, US District Court Southern District Indiana, US Bankruptcy Court Southern District Indiana.
