By Molly Murphy
Attorney, Cordell & Cordell, P.C.
An issue that I deal with in my practice that seems to be coming up more frequently is that of maintenance, otherwise called alimony or spousal support. In this economy, many adults are out of work. They need every penny to meet their monthly expenses. One such source of funds is the spouse you are divorcing.
Maintenance in Missouri, where I practice, along with other states can come in several different forms. In order to understand how or why maintenance will apply to your case, we need to review the relevant state law. DadsDivorce.com has a handy resource of state-by-state listings of divorce laws so refer to your state for specific laws.
For the purpose of this article I will use the Missouri law as a guide. The law is Missouri Revised Statute §452.335, entitled Dissolution of Marriage, Divorce, Alimony and Separate Maintenance.
Section One of the statue states the Court can order a maintenance order to either spouse who is a party to a dissolution of marriage case. They may grant said order if either spouse lacks sufficient property to provide for their own needs, or is unable to support herself or himself by appropriate employment. In this case, Judges in Missouri will examine if there is a disparity in income. If there is, how different is it?
In some cases, the Husband has worked for twenty years and has been the sole breadwinner. Wife has been a homemaker caring for the children. Oftentimes Wife gave up her career for her family. Many Judges in Missouri would impute Wife with the income of minimum wage, or at $1257.00 a month. Some Judges may not. However, every Judge in Missouri believes that everyone who is getting divorced needs to leave the Court and go out and get a job, no matter how long they have been out of the workforce.
Section Two further states that the order must consider such factors as the financial resources of the party seeking maintenance, the time necessary to acquire sufficient education or training for the party to find appropriate employment, the comparative earning capacity of each spouse, the standard of living established during the marriage, the obligations and assets of each party, the duration of the marriage, the age, and physical and emotional condition of the spouse seeking maintenance, the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance, the conduct of the parties during the marriage and any other relevant factors.
The Judge can focus on any one of these points, but courts in Missouri, in my own practice, seem to focus on the standard of living established during the marriage, the length of the marriage and age. If you have an emotional or physical issue you need to make your claim for maintenance. Even if you are not suffering from the issue at this time, your paperwork should state that if the issue arises it can be considered for an order. This is the only instance where maintenance cannot be finally waived at Dissolution of Marriage.
Section Three of the statute, states that the maintenance order can be either modifiable or non-modifiable. I would recommend to any client that they seek modifiable maintenance. Non-modifiable maintenance means that you are locked into that maintenance number for the amount of years or indefinite term you have agreed to. This is a very high standard of proof to overcome, and cannot be overcome even if you lose your job or your income is cut.
Although the statute states that the Court may order maintenance which includes a termination date, some Judges have reviewed current case law and believe that the Supreme Court has in effect struck that portion of the statute. Further, if the maintenance order is modifiable, it can be decreased, increased, terminated, extended or otherwise modified based upon the standard of substantial and continuing changes. These substantial and continuing changes must occur after the date of Dissolution of Marriage. They can include things such as you losing your job or taking a lower or higher paying job, or your spouse losing her job or taking a higher or lower paying job. Maintenance, unless specifically stated otherwise, always terminates upon the remarriage or death of either spouse.
Some Judges have a pattern of looking at the spouse seeking maintenance’s expenses, and reviewing what the number is when you minus their salary from their expenses. This is one way in which the maintenance number can be determined.
There are also other forms of maintenance, or spousal support, used in Missouri. Maintenance can also be ordered in the form of one spouse paying for the other spouse’s health insurance. This is usually done on a term basis. Paying for someone’s health insurance is not an indefinite, because state benefits do come into play when the receiving party turns a certain age. Other parties can agree that they will change the beneficiary of their life insurance policy to that of the receiving spouse. Parties can agree that maintenance will be paid out of an existing pension, retirement or savings plan, which can be done through a Qualified Domestic Relations Order. Please remember that maintenance is tax deductible.
In my experience, a motion to modify maintenance can be one of the most difficult cases for attorneys to litigate. As with any modification, it will take longer, usually be more costly and there is no guaranteed outcome. Also, be prepared for your former spouse to counter your Motion to Modify asking for an increase in maintenance. Please speak to your attorney to find out other options.
Margaret “Molly” P. Murphy is an Associate Attorney in the Arnold, Missouri office of Cordell & Cordell, P.C. where she practices exclusively in the area of domestic relations. Ms. Murphy is admitted to practice law in the state of Missouri. Ms. Murphy was born and raised in St. Louis. She received her B.A. in Political Science and English Language and Literature in 1998 from the University of Tulsa where she graduated magna cum laude. Ms. Murphy received her Juris Doctor from the University of Missouri-Columbia in 2001.