| 1. Introduction
5. Modification 10. Post Tax Outcome 12. Closing Thoughts 13. About the Author |
Maintenance / Alimony
To our clients at Cordell & Cordell and I’d venture to say divorcing men everywhere, perhaps the single most offensive issue in a divorce is that of maintenance, once termed alimony.
Our clients typically had no objection to supporting their wives during the marriage wherein a sort of reciprocal marital relationship existed – a sort of division of labor, whereby each spouse plays a pivotal role. In fact during the marriage husbands are notoriously too generous as far as their divorce lawyers are concerned.
But when the partnership is terminated and each goes his or her own way, the dynamic dramatically changes. That once powerful chivalrous impulse is lost. Now the issue of support becomes simply a matter of whether or not this male adult will be required to support another presumably healthy female adult.
This objection is greatly magnified where the partnership was concluded by the wife’s decision to abandon the marriage, which as we’ve discussed, likely included infidelity.
This reaction strikes me as perfectly natural, particularly in light of the cataclysmic social, political and economic changes of recent decades relating to women’s rights. These efforts have proven remarkably successful. No longer can it be said, except in the most radical feminist circles, that women face any significant barriers in the marketplace because of their gender.
Opposing counsel, however, may concede this point, yet insist that his client is legally entitled to maintenance. He may be correct, depending both on his client’s and my client’s circumstances.
Before I go further, let me insert a disclaimer here. Based on Cordell & Cordell’s statistical experience, I make the assumption as I write that you are the party being asked to pay maintenance. Certainly it is possible, in fact likely, that at least some of my readers will be the ones seeking maintenance. If so, where I describe the basic law, simply adjust accordingly the gender nouns and pronouns. The law on this subject is gender-blind by federal constitutional mandate as well as by statute in every state. (I am not so naive as to suggest that biases do not surreptitiously creep in).
Regarding, however, my empirical observations, which are not so interchangeable, I apologize. I focus my attention in this discussion, as at several other places in this guide, on the circumstances I believe to be of the overwhelming majority of my readers.
Let me at this juncture give you a brief tutorial on how maintenance, at least in theory, is determined.
The first step is to examine the relevant factors prescribed by the statute. Here is Missouri’s, for example:
§452.335.2. The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.
As you can see the factors listed are vague. For example the statute tells us that the length of the marriage is important but it tells us nothing about its implications for a given marriage. You can safely speculate as to the provision’s helpfulness or harm if you are on one end of the duration continuum or the other, e.g. a marriage of 3 years or one of 30. But if your case is among that great majority in between, the import is less clear.
But, of course, this is why you have a lawyer. He is likely familiar with the applicable case law in your jurisdiction which will give you some more specific guidance. Often better than case law, however, is your lawyer’s familiarity with your particular judge’s opinion on the subject. In many states a good watershed point is 10 years. This simply means that, all other things being equal, a judge in such jurisdictions is more inclined to deny maintenance when the parties have been married less than 10 years and to grant it when more.
The statute speaks of the recipient’s reasonable needs and the payor’s ability to pay. These provisions in theory at least simultaneously create a ceiling on payments to the recipient and a protective floor on the payor’s minimum threshold of retained funds. Now let’s look at how these two provisions interact operationally.
