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Maintenance (Alimony)

The purpose of maintenance is to substitute for financial support during the marriage to ease a lesser income-earning spouse’s transition into the work force and prevent the spouse from becoming dependent on public assistance.  For example, the court may use an award of maintenance as a tool to balance equities and compensate a spouse whose work has enabled the other spouse to obtain an education.  The determination of a spouse’s reasonable needs depends on the particular facts and circumstances of the parties’ marriage.

In determining whether to award maintenance, the court must make a determination that the spouse requesting it lacks sufficient property, including marital property being divided, to provide for his or her reasonable needs and is unable to support his/herself through appropriate employment.  Appropriate employment is determined based on the facts and circumstances of each case, but essentially the court looks at the person’s earning capacity based on education and experience, as well as the person’s expectations and intentions during the marriage.  Additionally, the court must consider the receiving spouse’s share of the marital property in arriving at its maintenance award.

The Court bases its findings on the financial conditions, abilities, and needs of the parties as they appear at the time of the divorce hearing rather than on what those conditions might have been in the past or may be in the future.  Therefore, even if the spouse requesting maintenance used to earn a higher income, that spouse may be entitled to maintenance depending on circumstances that exist at the time of the divorce, such as disability.  The court looks at each spouse’s earning capacity at the time of divorce, but will examine all relevant factors such as past earnings.

Maintenance must be requested in the petition for divorce or it is waived.  Therefore, if you are getting divorced, make sure you ask for maintenance in your divorce Petition or Response to the Petition, because if you do not, you may not have the option to change your mind later.  If maintenance is a factor in your divorce, you should hire an attorney to negotiate the terms of your property settlement and maintenance to ensure you receive the most fair settlement.