Okay, so you want to file for divorce in Indiana. You’ve gone online to figure out your estimated child support ( https://mycourts.in.gov/csc/parents/), you have dutifully completed your required financial disclosure ( http://www.indy.gov/eGov/County/Clerk/Forms/Documents/Marion%20County_Finanacial_Declaration_Form.pdf), and you have checked out the self-service legal center to get the forms you think you will need ( http://www.in.gov/judiciary/selfservice/2350.htm), and you have watched the video about representing yourself in court ( http://www.in.gov/judiciary/selfservice/2361.htm). And if you’re really smart, you’ve called a lawyer or two for a consultation just to make sure you’ve covered your bases and you know what you’re getting into. But have you done your spousal maintenance homework?
Spousal maintenance, aka alimony, aka spousal support, is alive and kicking in Indiana – and in some cases, you could be on the hook forever. So it’s important to do your homework before you file for divorce, so there are no crazy surprises when your divorce is finalized. This is particularly true because, unlike child support, spousal maintenance obligations can be extremely difficult (and expensive) to modify – if they can even be modified at all. And unlike child support (or your marriage!), they can last forever. (For a lively discussion of this point, check out this article: http://finance.yahoo.com/blogs/daily-ticker/end-permanent-alimony-forever-opponents-122909755.html).
Let’s take a closer look at spousal maintenance in Indiana:
What is spousal maintenance?
Spousal maintenance is an obligation to pay a certain amount of money to your ex, or soon to be ex, that is usually paid monthly, weekly, or every pay period, and is typically (but not always) for a defined period of time. And the person receiving the money is entitled to use it however he or she sees fit – whether he or she needs it or not. There’s generally no obligation for the recipient to account for how the money is spent, so you very well might end up footing the bill for your ex to wine and dine his or her next Romeo or Juliet. Something to think about.
When can spousal maintenance be ordered?
Spousal maintenance is governed by Indiana Code Section 31-15-7. Under that statute, maintenance can be ordered during a period of legal separation, during the pendency of a divorce (the time period between filing the petition for dissolution and when the divorce is actually finalized), or at the final dissolution.
The judge has the authority to order spousal maintenance in three circumstances:
If your spouse is disabled (physically or mentally) and, consequently her ability to support herself is materially affected. This is called disability maintenance. Note that your spouse doesn’t have to be completely unable to work – if she can only work part-time, or is otherwise unable to earn what she would be able to make if she were not disabled, the judge can order spousal maintenance. Most of the time, it’s harder to convince the judge to order spousal maintenance for mental impairments than it is for physical ones, and generally the person seeking the maintenance will have to show some strong proof that she needs it. But if the judge does award maintenance in this situation, the maintenance can be for any length of time the judge sees fit, for a temporary period of time or for forever. In some cases, you could still be paying maintenance even if your ex remarries.
If your spouse has custody of a child who is disabled, and because of having to care for the child, your ex’s ability to support herself is materially affected. This is called caregiver maintenance, and like disability maintenance, it can be temporary or permanent.
If the court determines that, because of her education level, her job history, or some other reason, your spouse needs a little extra help getting back on her feet, the judge can order rehabilitative maintenance. This form of maintenance can be for no more than three years, and is most often awarded where one party has been the homemaker while the other party was the breadwinner and, because she has been out of the workforce for a significant period of time during the marriage, she needs additional training, education, or simply more time to find a job to support herself. Sometimes this can be tied to a specific thing – like, you could be required to pay for your spouse to finish her college degree, or take a certification course. Sometimes it’s just a weekly, monthly, or other periodic payment to help her get back on her feet. This is the only kind of court-ordered maintenance that is specifically limited in the statute to a certain period of time – no more than three years.
Even if the judge does not order spousal maintenance, spousal maintenance can still be imposed by agreement. This means that you and your spouse can negotiate over, and eventually agree upon, a spousal maintenance obligation, during the settlement process. If you agree to pay spousal maintenance and the judge approves your agreement, that obligation is enforced the same way a court order is enforced – through the contempt process.
Can spousal maintenance be modified or terminated?
Maybe. If the maintenance was imposed by court order, for one of the three reasons above, then it can be modified or revoked if a substantial change in circumstances has made the obligation unreasonable. So if your ex-Mrs. marries some rich guy, or your business goes under and you go from six figures to food stamps, you may be able to get the order modified. It’s a difficult process, however, and the burden of proof will be on you to prove that things have changed and now the obligation is unreasonable.
If it was imposed by agreement rather than by court order, though, you will face a number of hurdles if you try to modify your obligation. The court only has the authority to modify the obligation if the court would have had the authority to impose it in the first place – so if you are considering agreeing to pay maintenance because your spouse is disabled, caring for a disabled child, or needs temporary assistance getting back on her feet, you’d better make sure that’s spelled out in your settlement agreement. Otherwise the court will not be able to modify the maintenance obligation at all. Also, if it appears that the payments were really part of the property settlement (like you agreed to pay her maintenance for 10 years in exchange for her keeping her hands off your pension), you will not be able to modify that maintenance.
To put a finer point on this: There was a recent Indiana case where Husband had agreed, over 10 years ago, to pay spousal maintenance to his wife until death. At the time, he was making six figures, and she suffered from rheumatoid arthritis and was unable to work. Husband faithfully paid the maintenance for over a decade, rain or shine, even though both he and Wife eventually remarried other partners. When Husband was forced to take an early retirement for medical reasons, his income was reduced to a fraction of what it once was. He petitioned the court to modify the maintenance. The problem: Nothing in the record indicated that he’d agreed to pay the maintenance on the basis of Wife’s medical condition. I’ll spare you all of the nitty-gritty, but the upshot was that the court did not allow Husband to modify the maintenance, even though Wife’s financial situation was significantly better than his own, so he is still on the hook for $500 a month. Meanwhile, he has had to drain his savings, has gotten behind on his bills, and is truly in dire financial straits. Moral of the story: No matter how guilty you feel about the divorce, no matter how much you still feel responsible to take care of your soon-to-be ex, talk to a lawyer before you agree to pay spousal maintenance - or before you head into that final hearing, especially if your spouse is disabled or has a disabled child. There is a time and a place for spousal maintenance, but make sure you completely understand what you’re getting into before you’re saddled with an obligation you may be paying for the rest of your life.
As always, if you have a question, feel free to leave it here, send an email to me at email@example.com, or call me for a free consultation at 317-460-8969. Thanks for reading!
Divorce / Separation Lawyer