Unlike child support, there is no convenient formula or chart for the court or the parties to use in determining the appropriate amount of spousal maintenance (alimony) to be paid, if any. Rather, the court considers certain statutory factors in making this determination. As a threshold matter, before a party to a divorce action can be entitled to an award of spousal maintenance, the court must make the finding that the party receiving spousal maintenance:
- lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or
- is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
If the court makes either of these findings and determines that a party is in fact entitled to an award of spousal maintenance, it must then determine the duration and amount of the award. The award can be for a set amount of months or years (temporary or rehabilitative maintenance), or the award can be permanent. The court considers the following statutory factors in ruling on the duration and amount of spousal maintenance awards:
- the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
- the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;
- he standard of living established during the marriage;
- the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;
- the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;
- the age, and physical and emotional condition of the spouse seeking maintenance;
- the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and
- the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in the furtherance of the other party’s employment or business.
Courts will award temporary spousal maintenance when they believe that the spouse receiving the award needs the support while they “get back on their feet” and get to a point where they can be self-supporting. Permanent awards of spousal maintenance are typically made when one spouse was the sole source of income over a significant period of time.
Like child support, an award of spousal maintenance can be modified upon a showing by the moving party that there has been a substantial change of circumstances. This most often involves a change in the income of the obligor. In some instances, a party’s ability to modify an award can be limited if the parties executed a Karon waiver at the time of their divorce. When this happens, the parties can agree that neither party can ever seek an award of spousal maintenance from the other party, or they can agree that the award of spousal maintenance cannot be modified.
Please contact McGraw Law Firm for more information. 651.209.3200.