iStock_000005671356XSmallSpousal Maintenance, formerly known as alimony, or simply maintenance, is support paid from one spouse to another spouse when a court determines that support is just.  To the chagrin of many, the State law specifically states that maintenance is to be awarded “without regard to marital misconduct”. Rather, the factors for a judge to consider in determining whether maintenance should be awarded includes, but it not limited to: the income and property of each spouse; the needs of each spouse; the present and future earning capacity of each spouse; any impairment; duration of the marriage; the standard of living to which both spouses have become accustomed; and other factors.

In other words, maintenance is determined solely on the basis of economics, and not fault. This is a sore subject for the abused spouse or “innocent spouse”; but this is the standard written into the law. Who might be at fault, or more at fault, for the marital breakup simply is not part of the maintenance equation.

An overarching goal stated in the law and reflected in the case law is to attempt to allow both spouses to maintain the lifestyle to which they have become accustomed. In reality, the adage that two can live more cheaply together than one can live alone is true. One household during marriage becomes two households after divorce, and the cost of living to two divorced people is greater than it is for two married people.

Maintenance is one of the more complex and involved determinations that must be made in a divorce. The fundamental principles have been evolving since the 1970's as the roles of men and women in society, cultural presumptions and norms and many other factors have changed and continue to change. Maintenance is often is impacted by the division of marital and non-marital property, including a consideration of income-producing property available to both spouses. Courts will consider the comparative levels of education, skills, work experience, absence from the workforce, and many other factors in determining whether maintenance should be awarded, how much and for how long.

No area of law impacting divorce has been, perhaps, less predictable, more subject to change and subject to a wider range of outcomes than maintenance. This is also perhaps why the State Legislature made dramatic changes to the way maintenance is calculated that went into effect January 1, 2015. Legislative history reveals a concern that maintenance amounts were significantly different in different parts of the state, from county to county and even from judge to judge. For that stated reason, the Legislature has imposed a maintenance formula to determine the amount of maintenance to be awarded when a judge determines maintenance is appropriate.

Knowing the judges, knowing the local proclivities and nuances, has been particularly important in the area of spousal maintenance, but that may change with the new maintenance formula, though that remains to be seen. Early indications reveal that judges tend to be willing to deviate from the formula.

If you believe you may be entitled to maintenance or fear your spouse will seek maintenance, and would like to discuss it, please contact us. We will give you an assessment, and, if you retain us, we will advocate your position for or against spousal maintenance to the extent the laws allow.


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