Indiana abolished alimony and replaced it with the concept of post-decree spousal maintenance. While many spouses want to turn this into a form of alimony, Indiana courts are very limited in the amount and duration of post-decree spousal maintenance that they can award. However, this certainly does not stop spouses from requesting maintenance that exceeds what an Indiana court can award, and therefore, an examination of the arguments for and against spousal maintenance in Indiana my prove helpful to your case, even if you are in a different state.
Spousal maintenance in Indiana, as in most states, is governed by a specific statute, Indiana Code 31-15-7-2 (formerly I.C. 31-1-11.5-11). “In ordering maintenance today, an Indiana court is restricted to three, quite limited options. First, it may grant incapacity maintenance if it “finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself is materially affected.” Ind.Code Ann. § 31-1-11.5-11(e)(1). Second, a court may order caregiver maintenance if it finds that a spouse must forego employment in order to care for a child with a physical or mental incapacity. Id. § 31-1-11.5-11(e)(2). Third, a court may order rehabilitative maintenance for no more than three years if it finds that a spouse needs support while acquiring sufficient education or training to get an appropriate job. Id. § 31-1-11.5-11(e)(3),” Voigt v. Voigt, 670 N.E.2d 1271, 1276-77 (Ind.1996).
In cases where the spouse claims maintenance based on a physical or mental incapacity, we have often requested that the Court order the spouse to apply for a determination of eligibility for disability from the Social Security administration. If the eligibility for disability is not award, the wife has a much harder case in the trial court. If the eligibility is awarded, the amount of the benefits can be used to argue against any award of spousal maintenance from the husband. In addition, some disability awards allow the recipient to earn income, and are therefore not an award of total disability (which is what some spouses try to argue to the trial court).
In case where the spouse claims maintenance based on caring for a child with a physical or mental incapacity, the history of the parties in caring for the child should first be examined. If the child has had other caretakers, or is capable of enrollment in school, the claim can be opposed. If the child historically has not had any caregiver other than the parents, then a physician, therapist, or counselor who is an expert in the child’s specific disability can make an evaluation and recommendation to the Court concerning non-spouse care taking options. The costs of these options would have to be weighed against the requested spousal maintenance, as will the availability of insurance or government aid. In addition, the income that the spouse can earn if she is not caring for the child can be estimated and presented to the Court.
The third scenario – rehabilitative maintenance – is probably the most litigated form in Indiana. Many spouses view this as a “go to college on my husband’s dime” provision, which it most certainly is not. Many spouses with a bachelor’s degree, or sometimes even a master’s degree, will request rehabilitative maintenance to go to college to get another degree. This is not what the statute permits. Presenting your wife’s education background, her employment history, and her volunteer experience during the marriage, can give the Court an accurate picture of her ability to obtain employment. During discovery, you can request copies of every application for employment she has submitted. It is very difficult for a Court to make a determination that a wife needs rehabilitative maintenance to obtain an appropriate job if she has not tested the waters to see what jobs are available for her!
In all three scenarios, the wife must present her expenses, her income, and her needs, for the Court to determine the amount of maintenance to award. In looking at the expenses, courts can consider the amount of child support being paid, in that the child support will cover a portion of the living expenses. Also, the court can consider how much the spouse is being awarded under the division of the marital estate, and especially how much debt is being assumed by one spouse or the other.
These strategies can also be used in states that are more generous in awarding spousal maintenance. However, in those states, it might not be possible to steer the Court into considering only these three scenarios, but presenting evidence and argument on these three scenarios can reduce the possibility that the Court will find the spousal maintenance is “required.”