Many people still refer to maintenance as “alimony.” However, the statutory term is maintenance. This would typically be expressed as a monthly payment that is paid from one party to the other post-divorce. It is an obligation of support that the Court imposes in certain cases.
Most divorce cases do not result in an obligation of maintenance. When one party files a petition requesting maintenance, the Court must first determine whether that person has sufficient assets or income with which to support himself/herself. If each party is able to support his/her needs going forward, the Court will not award maintenance. Many people are under the mistaken belief that a disparity of income alone is sufficient for a Court to award maintenance. That is not accurate if each party is self-supporting.
When considering a maintenance award, the Court is merely trying to give enough to provide the necessary support. This does not mean that the person has to be at their previous standard of living. Often times, the Court will also want to see that some effort is being made to become self-supporting or at least contribute.
Unlike in a child support order, there is no form calculation for maintenance (at least not one we utilize in St. Charles County). Rather, it is largely within the Court’s discretion as to amount. The Judge will consider the respective incomes and reasonable expenses for both parties prior to making an award.
When a Court awards maintenance, it is almost always an open-ended, modifiable award. Unless a Court can pinpoint an exact time at which someone will definitely become self-supporting, it cannot award maintenance that terminates. However, many parties who negotiate and settle out of Court do agree to “term maintenance,” which is a maintenance obligation that automatically terminates at a given date. If it is an open-ended, modifiable award of maintenance, it can be modified to a higher or lower amount or be terminated based upon proof of a substantial and continuing change of circumstances of either party. Maintenance terminates upon the re-marriage of the recipient or the death of either party.
Maintenance is taxable income to the recipient and tax deductible to the obligor. This is another difference between maintenance and child support. This can be an important consideration when one party is obligated to pay both maintenance and child support because of the tax consequences to each party.