Frequently, one of the first questions a client may ask is “what is maintenance” and then the next questions, depending on who is doing the asking, are either “will I have to pay it” or “will I get it.” Other questions include “how much will I receive or have to pay,” and “for how long.”
Maintenance is spousal support and used to be called alimony in earlier times. There are two tests to determine if someone will receive maintenance. First, they must lack sufficient income producing property to meet their “reasonable needs.” The term “reasonable needs” is a relative term and may be influenced by several factors including, but not limited to, the “standard of living” of the parties. The law requires an examination of the “reasonable needs” of both parties and the ability to pay of the party from whom maintenance is sought.
Second, the spouse seeking maintenance must be unable to support himself or herself through “appropriate” employment or be the custodian of a child whose circumstances make it inappropriate for the custodian to work outside the home.
Because there is no chart, graph or table to refer to as to this determination or as to the amount or duration of maintenance, the courts consider various factors, including the length of the marriage and the standard of living of the parties. However, for the most part, if the Court determines that maintenance is appropriate, the award will likely be modifiable and will have an open ended duration. The courts usually will not speculate as to when there will no longer be need for maintenance and will place the burden on the paying party to seek a modification in the future if they can demonstrate a substantial and continuing change in circumstances that makes the prior award unreasonable.
In most cases, unless a settlement agreement provides otherwise, the death of either party, or the remarriage of the recipient, automatically terminates maintenance.
Maintenance cases and actions to modify maintenance (to increase, decrease or terminate) are frequently very difficult to resolve, in part due to the lack of any official chart, graph or table that is tied to the duration of the marriage, age, standard of living or other factors. However, courts can, and frequently do, alter the amount, up or down, depending on the evidence of a change.
Lawyers generally base their assessment of these challenging issues on the unique facts of your case, case law involving similar situations and even the tendencies of the Judge that a case is assigned to.
Unlike child support, which has guidelines and a formula for determining amounts and laws that govern the duration, the determination of maintenance lacks these clear guidelines or any clear formula. So, your lawyer must be familiar with case law concerning awards and modifications, and know the tendencies of the judge, in order to asses this emotional and challenging issue.
You should discuss these questions with your attorney based on the facts of your situation, not on those of other people you may have heard stories from.
While these cases can be difficult to resolve, with capable counsel, they are frequently resolved without the need for a trial.
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