Wednesday, June 24, 2009
The payment of maintenance, sometimes referred to as spousal support or alimony, is entirely up to the discretion of the courts in most states. Unlike child support, which is mandated by statute as to the amount (based on a specific percentage of each parent's income), spousal support may be granted or denied at the judge's discretion, and the amount of this payment is not fixed based on statutory laws.
Years ago, before most states enacted Equitable Distribution laws, a spouse could be granted alimony based on a disparity of incomes between each party, and based on the financial needs and accustomed standard of living achieved during the marriage. If spousal support was granted, it would last for the life of the needy party, or until his or her remarriage.
Before 1980, spousal support would be denied, as a matter of law, in the event a divorce
was granted on grounds against the needy party. For example, if a wife, who never worked, were found to be guilty of cruelty or adultery, she would be barred by law from ever collecting spousal support, no matter how egregious the conduct of the husband was during the marriage.
In the early 1980s, most states rectified this inequity by establishing Equitable Distribution laws. Today, most states grant spousal support according to genuine need. It is designed to be rehabilitative in nature in order to provide the needy spouse sufficient time to complete an education (or re-education) so that he or she may be able to return to the workforce and earn a decent living. Therefore, spousal support is generally limited to a short period of time, depending on the duration and circumstances of the marriage.
It is not uncommon for spousal support to only last for one year when the marriage was short. For a longer marriage, spousal support may last for as long as five years. The presence of young pre-school children at home is often a factor in determining spousal support, since the custodial parent may need to stay home with the children for a number of years.
In situations where the couple filed for divorce after a very long marriage, a spouse who stayed at home for many years and who is beyond the age where he or she could reasonably retrain for employment might be granted lifetime spousal support. Regardless, marital fault will no longer disqualify you from receiving spousal support; it is determined on the basis of need.
The court will consider the following factors when determining the amount and duration of spousal support:
- Income disparity between each party
- The lifestyle and needs of the "poorer" spouse
- The ability of the "wealthier" spouse to support him/herself after paying maintenance
- The ability of the needy spouse to gain or regain full employment
- The duration of the marriage
Of course, you do not have to leave this issue up to the courts. You and your estranged spouse can negotiate these issues with the help of your divorce lawyer. This will save you a great deal of time, aggravation, and legal expenses.