Maintenance (also or formally known as Alimony in some jurisdictions) is intended to provide support for a spouse after a divorce from the other spouse. Maintenance is now gender neutral and either spouse may make a claim for maintenance, however, for this article I will assume that the former husband is being asked to pay maintenance to the wife.
The general standard in most locations hold that maintenance can be awarded if the spouse lacks sufficient property, including marital property apportioned to her to provide for her reasonable needs and expenses and is unable to support herself through appropriate employment. If the wife is unable to support herself, a second standard must be met. The wife would then need to show that husband has the ability to contribute to the needs of the wife while meeting his own reasonable needs and expenses. The standard of living that the parties shared during the marriage is a factor in determining if the claimed expenses are reasonable, but generally is not consider the same as reasonable needs. The party seeking an award of maintenance would have the burden of proving that they are in need of support from their former spouse and that the former spouse can provide for their support.
The trial judge will often have substantial discretion in deciding if maintenance is needed and if needed the amount of the award. In some jurisdictions the court may also have discretion to set a term for the length of time the maintenance would be paid. However, in some States the judges discretion in setting a term is severely restricted and would need to find that a specific event will occur in the future such that the maintenance would no longer be needed or the paying spouse would no longer be able to contribute to the support of wife. It is critical that if your jurisdiction allows for a change of judge that your attorney is familiar with the court’s position on maintenance and if that position is not favorable consider and be willing to take the change of judge.
The evaluation of a maintenance claim should begin immediately at the first or initial meeting with the client. The major factors that the attorney should look at is the relative income of the parties and their work history, the age of the parties, the length of the marriage, the age of the children and likely custody arrangement for any children, the education of the parties, if either party has any disability and if either party is guilty of causing the breakdown of the marriage (if fault is a factor in dissolution in the jurisdiction).
If the divorce is not going to occur for some time, the husband should consider the following actions to reduce his exposure to alimony:
1.Reduce the current household expenses. If the recent average expenses are lower at the time of the divorce, there is less need for support for wife following the divorce.
2. If the parties have separated establish a pattern or precedent of wife supporting her own needs without contribution or with limited contribution from the husband. You do not want to “abandon” a spouse that is truly in need as there are potential criminal ramifications in some States. Therefore it is wise to consult an attorney that can review your income and household expenses to help you determine a proper amount of temporary support to provide to the spouse.
3. Consider reducing or eliminating unsecured debt. This is not a given as it maybe beneficial in the divorce to use the unsecured debt to increase husband’s expenses thereby reducing his ability to pay maintenance.
4. Suggest and help move wife toward employment or completing and education. If the wife has an income she has less need for support from her former spouse.
5. Maximize your time and involvement with your children. This is probably a suggestion that would be made by counsel in relation to a custody or visitation issue, but also applies to reducing expose to maintenance. If the wife is not required to care for the children full time she has more time an opportunity to acquire employment, if has been working acquire full time employment or attend school and complete her education.
6. Investigate misconduct. If a state allows misconduct to be a factor in the divorce, if the wife has caused the breakdown of the marriage it can help keep the door closed to maintenance or limit the amount paid. The reverse is also true. If husband is engaged in misconduct (affair, abuse, alcoholism) he needs to take steps to rectify the situation and reduce his misdeeds to a level that the conduct did not cause the breakdown of the marriage.
7. Allow a temporary disability to improve. If wife has a temporary disability or treatable disability that diminishes her ability to work the husband should take necessary steps to help wife overcome and rehabilitate the disability. This could be as simple as waiting to file until a broken leg heals.
8. If the income is trending down or a typical bonus will be lower or not paid, it would make sense in holding off the divorce to use that lower income in calculating maintenance. If income is expected to increase or a greater bonus is expected it would be logical to file and push the divorce along before the increased income is achieved.
The foundation for any maintenance review is going to be the financial affidavit of the parties. This document will list the income of the spouse, the expense of the spouse, the expenses of the children, assets and debts of the parties. It is required for both parties to file a financial affidavit in most jurisdictions. One of the largest mistakes that can be made in a domestic relations case is the attorney and the client not spending sufficient time reviewing and considering the financial statements filed in the case. The attorney should have a reasonable idea about what typical families spend on various expenses and should closely review and question the client on how the client arrived at the expenses provided and should pay particular attention to any expenses that fall out of the normal range. When completing the financial affidavit use actual averages of the utilities and variable expenses. If a budget or copies of the monthly bills are not retained, call the electric company and the can provide an average for that home over any time period requested. Review check registers and bank statements. The defending spouse will want to be as accurate as possible when completing this statement as the spouse request maintenance often will exaggerate the expenses and subject themselves to rigorous cross examination if the matter would result in trial. The focus on defending a claim of maintenance is often seeking to increase the income of the wife and reduce her expenses down to reasonable.
The review of the financial affidavit of the spouse requesting maintenance will often have exaggerated and inaccurate expenses listed. A large portion of the litigation will relate to building a case against the expenses and reasonableness of the expenses. This requires discovery. Discovery is a legal term that encompasses a variety of methods of gathering information. Interrogatories are written questions directed to one party. A Request for Production of Documents is also very standard and consists of exactly what the name implies. Subpoenas are requests for information from third parties such as banks, financial institutions (retirement account for example), employers, schools or companies that are listed as expenses such as electric companies or mortgage companies. Depositions are often held in cases that are progressing toward a trial. The deposition allows the attorney to ask questions directly of a witness or party. The deposition is usually done in person although in rare circumstances they maybe held by telephone, video conference or even through writing. The deposition is recorded and the testimony can usually be used at trial, most often for impeachment purposes. Clients will often inquire why we are spending several hundred dollars in fees and expenses on discovery just to show that the gas or electric bills is fifty or one hundred dollars less than claimed by wife. The simple answer is if you can show that the expense of the wife is not accurate it brings into question the rest of the spouses financial affidavit and her testimony. Further, if you can lower the payment of maintenance by fifty or one hundred dollars per month that could equate to thousands of dollars over the potential life of the maintenance payments.
The focus will also fall upon the income and income potential of the party seeking maintenance. If employed we will need tax records, pay stubs, accounting ledgers of the self employed, bank statements and account records of income producing property. We will also consider retaining a vocational expert if we believe the wife is under employed. The vocational expert is often well worth the month they charge. For a relatively inexpensive cost they will testify about the jobs available in the local area that meet the wife’s education, skills, work history and even preferences for employment. These facts can be ascertained through the discovery methods discussed above.
I assess the maintenance claim in three steps. The first analysis occurs at the initial meeting or shortly thereafter. Basically the question is asked if the “feels like a maintained case” taking into consideration the income, age, education, disability and circumstances of the children. Step two is a basic income analysis. The post tax income is adjusted for the estimated child support as appropriate to the situation and then I scale a spreadsheet to provide to wife thirty five to fifty percent of the net available income. I then adjust for the tax consequences associated with the potential maintenance payment. If the adjusted income of wife exceeds thirty five to fifty percent of the adjusted combined net income that is a positive indication that maintenance is not warranted. This step two analysis is not a legal standard, but is useful for provide an estimated amount of maintenance and as a start for discussions at a settlement conference. Step three is the analysis that is prepared and argued at trial. Step three is breaking down the actual expenses of the wife and imputing income to wife. Often it isvaluable to blow up on a large sheet the financial affidavit of the wife. As she is cross examined and changes are necessary on the affidavit the changes are then noted right before the judge. Additionally a summary document of the expenses listed on the financial affidavit and the reasonable or actual expenses of wife as shown by the documentary evidence gathered in discovery is prepared and submitted to the court.
The hope at the end of the analysis is that the income (actual or imputed) of wife exceeds her expenses. If that is not the case we would also present arguments concerning the expenses and income of the husband and attempt to show his inability to pay maintenance regardless of the needs of wife.
In the jurisdictions that I practice, some common issues to note are that the expenses of the children are not considered for maintenance purposes. Further, cohabitation by wife with another person after the separation does not deny the spouse’s right to received maintenance, but is relevant to the determination of the amount of the maintenance award. Finally, the property from income producing property will be considered when determining maintenance, but the court will not force the spouse to expend the principal of the property.
If maintenance is warranted, some courts are limited to awarding open ended or modifiable maintenance unless a specific future event can be shown that would make wife no longer in need of support. Other jurisdictions allow the judges freedom to limit the term of maintenance. Even in a jurisdiction that does not allow judges the freedom to universally limit the term of the maintenance, some examples that could allow a court would be if wife was close to completing her college education or would recover from a temporary disability and be able to return to work. In a settled case, the parties can agree to limit the term of maintenance or agree to open ended maintenance. The limited term is usually non-modifiable. Therefore, situations other that the death of one party or remarriage of wife would not terminate the maintenance before the prescribed term. A common guideline is to consider the term to run for a period of one third to one half of the length of the marriage.