Frequently Asked Questions About Spousal Maintenance

Q: What is maintenance?

A: Maintenance is often referred to as alimony or spousal support. Maintenance is a person's right to support from her or his spouse.

Q: Is there more than one type of maintenance?

A: Temporary maintenance is awarded prior to the parties obtaining dissolution of their marriage. During the pendency of the divorce action, temporary maintenance may be awarded. The focus in a temporary maintenance award is to preserve the status quo during the pendency of the case. At the conclusion of the case, the temporary maintenance order will expire, as will all other temporary orders.

Permanent maintenance lasts until the payer spouse petitions for a change or until the occurrence of certain events such as the death of one of the parties. Permanent maintenance is appropriate in situations where the receiving spouse has little or no prospect of being able to support himself or herself without contribution from the other spouse.

Rehabilitative maintenance is awarded to a spouse usually for a specific period of time which the court believes it will take for him or her to return to the job market, and become self-supporting.

Reviewable maintenance is reviewed by the court after a specified period of time to determine whether the recipient has become self-supporting at which time the maintenance award can be modified, extended or terminated.

Q: Am I entitled to maintenance?

A: A maintenance award is not gender-specific - either spouse may be awarded maintenance. The grounds for divorce and any marital misconduct cannot be considered by the judge in deciding the question of maintenance. The judge must consider several factors in deciding whether maintenance is appropriate, and if so, the amount, duration and reviewability of the award. The statutory factors are:

  1. The income and property of each party, including marital property apportioned and nonmarital property assigned to the party seeking maintenance
  2. The needs of each party
  3. The present and future earning capacity of each party
  4. Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment, or career opportunities due to the marriage
  5. The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment
  6. The standard of living established during the marriage
  7. The duration of the marriage
  8. The age and the physical and emotional condition of both parties
  9. The tax consequences of the property division upon the respective economic circumstances of the parties
  10. Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse
  11. Any valid agreement of the parties and
  12. Any other factor that the court expressly finds to be just and equitable.

Q: Can maintenance be modified or terminated?

A: The parties may agree to make maintenance non-modifiable, or modifiable under certain specified circumstances. If they do not agree to non-modifiable maintenance, a maintenance award will terminate automatically upon the death, remarriage or unmarried conjugal live-in relationship of the spouse being maintained. Unless otherwise agreed, maintenance can be modified upon the showing of a "material change in circumstances."

Q: What is a material change in circumstances for purposes of modification of maintenance?

A: A material change in circumstances might include increased or decreased ability to pay, or a substantial change in the needs of either party. Some examples are retirement or loss of job by the payer spouse or attainment of employment by the receiving spouse. The same factors are to be considered in modifying as in an initial award of maintenance. In all cases except permanent maintenance situations, a spouse receiving maintenance has an affirmative obligation to make an effort to become self-supporting.

Q: Will my maintenance award be sufficient to allow both me and my spouse to live at the standard of living which we established during the marriage?

A: Oftentimes, the answer is no since this is not economically feasible. The standard of living established during the term of the marriage is one of the factors the court uses to determine the amount and term of the maintenance award. Because it is usually more expensive for a couple to live separately than to live together, the parties generally cannot afford to live at the same standard of living that was established during the marriage following a divorce.

Q: Will my maintenance terminate if I live with someone?

A: Under most circumstances maintenance will terminate if the recipient lives with another person on what is referred to as a "resident, continuing, conjugal basis." In determining whether you are living with another person on a resident, continuing, conjugal basis, the court looks at the facts of your particular case such as the economic impact resulting from the relationship, and the degree to which the relationship is like a marriage or more like a house sharing arrangement.

Q: What is unallocated family support?

A: In many cases, a spouse or ex-spouse is ordered to pay both child support and maintenance. The payer spouse will often times be in a higher tax bracket than the recipient spouse. Consequently, there may be significant tax savings if the payer spouse pays unallocated family support to the recipient spouse which is a sum sufficient to support both the children and the spouse, but is not allocated between child support and maintenance. Such an award may increase the available net income for the recipient spouse. Please see our child support page for a detailed example of the tax benefits of unallocated support.