Many people going through separation and divorce are familiar with child support and orders for health care, uninsured medical expenses, etc. for their children. Fewer are aware of the ability of the trial court to order one spouse to continue to support another spouse. While Indiana laws do not provide for Alimony, per se, they do provide for instances where one spouse may have been incapacitated or need additional time to re-enter the workforce at an income level that would sustain themselves. In these instances, Indiana laws allow a Judge to award Spousal Maintenance. Below, we will explore the four (4) main types of spousal maintenance, the timing, requirements and limitations of each. Bear in mind, that these are types of support the Judge can Order.
TEMPORARY SPOUSAL MAINTENANCE: By definition, these types of spousal maintenance end automatically without further need of a court order to terminate.
- Timing: The trial court may award temporary spousal maintenance during the pendency of a dissolution proceedings, meaning the time between filing a divorce and the final order, or during a Legal Separation. A legal separation has a legal limit of one year and therefore any maintenance award would terminate with the expiration of the legal separation.
- Requirements: The requirements in provisional maintenance orders are left to the sound discretion of the trial court. Generally, the goal of these orders is to maintain the status quo of the parties.
- Limitations: Temporary maintenance may be awarded by the court not to exceed thirty‑five percent (35%) of the obligor’s weekly adjusted income. In no case shall child support and temporary maintenance exceed fifty percent (50%) of the obligor’s weekly adjusted income. Temporary maintenance and/or child support may be ordered by the court either in dollar payments or “in‑kind” payments of obligations.
SPOUSAL INCAPACITY: If a spouse is physically or mentally incapacitated, a court may order maintenance if necessary during the period of incapacitation.
- Timing: At the time of the final hearing.
- Requirements: The incapacity can be physical or mental so long as it materially affects the incapacitated spouses’ ability to support himself or herself. Therefore, the essential question is: Can the incapacitated person support themselves. The decision to determine whether an incapacitated person is able to support himself or herself is left entirely up to the discretion of the court.
- Limitations: 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. Further, the award of spousal incapacity is subject to future modification and termination.
CAREGIVER: If the ex-spouse is the custodian of the parties’ incapacitated child.
- Timing: Presumably at the time of the final hearing.
- Requirements: The custodian must have 1) insufficient means to support himself or herself AND 2) must be required to forego employment in order to care for the child.
- Limitations: Here, the court can determine what they deem is an appropriate amount of time the maintenance is necessary.
REHABILITATIVE: 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. This is by far the most commonly litigated type of maintenance for the courts.
- Timing: At the time of the final hearing.
- Requirements: No real requirements. The trial court looks at “factors” to determine whether the award of spousal maintenance is warranted, but has discretion to make a determination based upon the evidence presented. The factors that the trial court considers are:
(A) the educational level of each spouse at the time of marriage and at the time the action is commenced;
(B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both;
(C) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and
(D) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment;
- Limitations: Not longer than three years from the date of the decree.
WHAT NEXT? Let’s assume that you are already subjected to a spousal maintenance order. Can it be modified? A lot depends on who the spousal maintenance order came about. The short answer is yes, but….
- By Agreement. 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 your rights are. In these instances, the rules of contract mostly apply as settlement agreements are “contracts” and typically the courts will enforce those agreement if the meaning is clear and both parties understood. 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)
- If maintenance has been ordered by the Court, the statute allows for modification or revocation if certain conditions are met.
- There must be 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.
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 317.526.4630, or email us at info@banksbrower.com, we are available 24/7/365.