Indiana’s Spousal Maintenance Statute: Can I get support after my divorce is final?
Does Indiana have alimony? What about spousal support? Most of us have heard the terms alimony or spousal support and most are aware the terms are used to define support that is given from one spouse to the other as part of a dissolution proceeding. Ironically, however, Indiana law does not recognize alimony or spousal support. Although, Indiana lawmakers recognized that there can be inconsistencies in the division of property during a divorce, and instead, codified what is known as “spousal maintenance.” IC 31-15-7-0.3.
Under IC 31-15-7, maintenance can be awarded as part of a divorce or legal separation decree, but the parameters of such an award are small. Generally, but for maintenance due to incapacitation, the statutory maximum that a court will require maintenance is 3 years. And, keep in mind, that legal separations can only last 1 year, so any maintenance awarded as part of a legal separation will likely only last 1 year as well. As a rule of thumb, the courts will award maintenance in very limited circumstances and because of that, most should not “hang their hat,” so to speak, on getting an award for maintenance. Let’s take a look below at some of the circumstances that may warrant an award of maintenance.
- Physical or Mental Incapacitation. If a spouse is physically or mentally incapacitated, a court may order maintenance is necessary during the period of incapacitation if that incapacitation materially affects that spouse’s ability to support him or herself. The key word here is “may,” which leaves maintenance entirely up to the discretion of the court. The courts can take in to account the disabled spouse’s ability to earn income as well as the other spouse’s ability to provide for maintenance.
- Child’s Physical or Mental Incapacitation. If the parties are the parents of a child who is physically or mentally incapacitated, the court may find an award of maintenance appropriate if:
- The incapacitation requires the spouse needing maintenance to forego employment, and
- The spouse lacks sufficient property, including marital property, to provide for the spouse’s needs.
- * Here, the court can determine what they deem is an appropriate amount of time the maintenance is necessary.
- Rehabilitative Maintenance. Courts can award what is known as rehabilitative maintenance if the spouse requesting it lacks an ability to support himself or herself due to lack of education or training. The court will consider 4 factors:
- The education level of each spouse at the time of marriage and at the time of divorce/legal separation,
- Whether there was an interruption in the education, training, or employment of the spouse seeking maintenance as a result of homemaking and/or child care responsibilities,
- The earning capacity of each spouse. The courts will consider educational background, training, employment skills, work experience, and length of presence in or absence from the job market, and
- The time and expense necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment.
- *This is going to be the most common type of maintenance awarded in a divorce/legal separation and this is where the statutory maximum of 3 years kicks in. Again, the court may order rehabilitative maintenance, which means the decision is entirely left up to the discretion of the court.
- By Agreement. The above instances are statutory, but it’s always a possibility for one spouse to agree to pay the other spouse maintenance. Whether you are the spouse agreeing to pay maintenance or the spouse receiving maintenance, it’s important to seek the advice of an attorney so that you know exactly what rights your rights are.
- If maintenance has been ordered, is there any recourse for the spouse obligated to pay? Yes! The statute allows for modification or revocation:
- Upon a showing of changes circumstances so substantial and continuing as to make the terms unreasonable, OR
- Upon a showing that the party ordered to pay an amount in child support that differs by more than 20% from the amount that would be ordered by applying the child support guidelines and the request for modification/revocation is filed at least 12 months after the original support order was issued.
The Court of Appeals has found that modification of a maintenance award applies to court-imposed maintenance, as well as maintenance by agreement. However, courts may be leery of modifying an agreement of maintenance and will likely look to the settlement agreement in order to determine the intent and reason for the agreement of maintenance and to whether the court would have been able to originally order maintenance under the statute. Zan v. Zan, 820 N.E.2d 1284 (Ind. Ct. App. 2005)
As you can see, the circumstances that warrant an award for maintenance are limited. Whether you’re thinking about divorce, going through a divorce, or trying to modify a maintenance order, the family law attorneys at Banks & Brower, LLC can help. Give us a call at 317.870.0019, or email us at email@example.com, we are available 24/7/365.