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FAQ: Spousal Maintenance and Modification

on Aug 2, 2017 in Divorce

What is spousal maintenance?

Spousal maintenance, also known as alimony, is a payment made by one spouse or former spouse to the other during or after a divorce proceeding.

Is There a Formula for Calculating Spousal Maintenance?

Courts do not use a formula when ordering maintenance.  The court determines the amount of spousal maintenance, if any, and how long the payments will last using a number of factors.

My Spouse Committed Adultery.  Can I Be Ordered to Pay Maintenance?

Yes, courts can order parties to pay alimony even if his or her spouse committed adultery.  Courts consider bad behavior such as adultery when awarding alimony.  However, it is one factor, not a deciding factor.

What Factors Does the Court Consider?

The court considers “all the factors necessary for a fair and equitable award.”  Specifically, Maryland law requires judges to consider the following:

  • how long the marriage lasted;
  • the age of both spouses;
  • the physical and mental condition of each spouse;
  • the spouse seeking spousal maintenance’s ability to support themselves;
  • how long it will take the spouse to become self-supporting, including any training or education required;
  • the standard of living the parties enjoyed during the marriage;
  • any agreement between the parties regarding spousal maintenance;
  • the contributions of each spouse to the marriage, financial or otherwise;
  • the circumstances leading to the end of the marriage;
  • the financial resources and needs of each party, including assets, retirement benefits, income;
  • property awarded during the divorce; and
  • the ability of the paying spouse to meet his or her own needs after paying spousal maintenance.

What is the Difference Between Alimony and Child Support?

Alimony is paid to a spouse or former spouse is for his or her support.  Child support pays for the support of a minor child or children.  Sometimes, parents with custody of a child may receive both child support and alimony.  However, the two payments serve different purposes.

When Do Spousal Maintenance Payments Start?

Courts can award spousal maintenance retroactively.  Courts can order the payments start from the date of the filing of the petition seeking spousal maintenance.

How Long Does Spousal Maintenance Last?

Maryland law does not limit the duration of spousal maintenance payments.  Courts have a great deal of flexibility.  The court can order the payments last indefinitely.  A court can order the payments be made for a fixed amount of time.  If the order is for a fixed period of time, that period can be extended later.

Can an Award be Modified?

Courts modify an award when circumstances and justice require it.

When financial circumstances change, it can be the basis for a modification by the court.  For example, if the party paying spousal maintenance loses his or her job, this may be the basis for a modification.

When Will a Court Modify an Award for Maintenance?

Many circumstances trigger a potential modification of court ordered maintenance including:

  • When the receiving spouse secures full employment;
  • If it becomes clear that the spouse is not able to become self-supporting;
  • When one of the spouses becomes permanently infirmed, disabled or injured;
  • When one of the parties loses his or her job or income source;
  • The living expenses of the receiving spouse reduced significantly;
  • The receiving spouse receives substantial assets through gift or inheritance; or
  • When either spouse has a significant change in income or expenses.  

When Can a Court Not Modify Alimony?

Courts may not modify spousal maintenance when the parties have made an agreement stating the spousal maintenance award may not be modified by the court.  Even if the circumstances of the parties change, the court may not modify the spousal maintenance award.  In the example cited above, even if the party paying spousal maintenance loses his or her job, the agreement taking the power to modify spousal maintenance away from the court means it is not allowed to do so.

When Can a Court Order Spousal Maintenance for an Indefinite Period?

Two factors will justify a court award of spousal maintenance indefinitely.  First, when a party seeking spousal maintenance has no prospect of self-sufficiency.  This can be from age, infirmity, disability or illness,

Second, when the court finds that even when the party seeking alimony does everything possible toward self-sufficiency, the standard of living for the parties will be unconscionably disparate.

What are the Tax Consequences of Spousal Maintenance?

Maintenance is taxable to the party receiving it.  It is deductible by the spouse that is paying it.  This is different from child support payments which are not taxable to the party receiving it or deductible for the party paying it.

Will I Continue Receiving Alimony if I Remarry?

Spousal maintenance terminates upon remarriage unless the parties agree otherwise.  Court ordered spousal maintenance terminates when the receiving party remarries.

What Records Should I Keep and Why?

Save all canceled checks or any other proof of payment of spousal maintenance.  This is for two reasons primarily.  First, the tax consequences described.  Your accountant needs copies of proof of alimony when preparing your annual tax return.  Second, disputes arise over payment of maintenance.  Proof of payment provided to your attorney proves for the court payments made.

Who Pays Attorney Fees?

Similar to maintenance, courts have tremendous flexibility to order one party to pay the other’s attorney fees.  This includes other court costs and even private investigators in some cases.

Can I Quit My Job and Avoid Paying Maintenance?

No, you cannot quit your job to avoid payment of maintenance (or child support).  When a court determines a party quit his or her job to avoid support payments, the court assumes the party will earn at least as much as they have in the past.  The court uses that amount to determine support payments.  Courts and attorneys call this imputing income.

If You Need Help with Maintenance Issues

If you need assistance with spousal maintenance issues, contact the lawyers at Fait & DiLima.  Our dedicated team of family law professionals can assist you with the facts and circumstances of your case.

Selected Reading

Divorce Decree Modification