My last article talked about temporary, or pendente lite alimony in Maryland. This time, I want to explain a little bit about the kind of alimony clients are most concerned about, the kind that you get (if you are the payee) or have to give (if you are the payor) after the divorce is final.
First, though, a word about how temporary alimony affects what happens with an alimony award at a final divorce hearing. Because the three types of alimony are based on different factors (temporary alimony simply on (1) need and (2) ability to pay; and either rehabilitative or indefinite alimony on a list that I’ll discuss here and in my next article), the amount of temporary alimony is not intended in Maryland law to predict how much will be paid when the divorce is final. The law is one thing but practical reality is very often something entirely different.
Judges have a lot to do. In Maryland, they usually hear different kinds of cases at different times. Many judges really don’t like family law cases, so when they have to hear them, too often they do the easiest thing instead of the legally correct thing. It’s easier for the judge to simply continue what has already been put in place. This is why it is so important for a lawyer to either establish or avoid alimony early in a case. It is also why it would be a good thing to have alimony guidelines. So far, however, it doesn’t look like anyone in Annapolis is even discussing that possibility, so we’re stuck with what we have.
In some situations, an award of alimony on a temporary basis, early in litigation, can be a good thing. Child support awards are based on very specific factors that are set out in Maryland statutes. The judge usually doesn’t have a lot of choice about how much to award if a case falls under Maryland’s Child Support Guidelines. When one person is paying alimony to the other (as long as the amount is ordered by a court), the amount paid is subtracted from their income and added to the income of the other parent who isn’t making so much. This changes the percentage share of income in the child support calculation and usually reduces the child support the paying spouse has to pay. If one spouse makes a lot of money, and the other doesn’t and there are children, it can be very important for the court to decide the alimony question on a temporary basis, especially if there is a good chance that the judge who decides the final divorce may just do whatever was already ordered.
In Maryland, the most common type of alimony award at a final divorce is called either “statutory" (or “rehabilitative") alimony. Maryland law doesn’t really favor alimony awards. It has been a long time since most wives were considered dependent on husbands. In addition, Maryland enacted an Equal Rights Amendment and the old idea of alimony was more like a pension for life for the wife. Before our ERA, the law still considered women to be incapable of taking care of themselves, so alimony awards were based on that idea.
However, after the ERA and the change in Maryland alimony law in 1980, the whole idea of why alimony should be awarded at all changed. Instead of a lifetime pension, or something a wife got to meet her needs as they existed during the marriage (indefinitely, by the way), the reason for alimony became to give the spouse who was not making as much as the other the chance to get on his or her feet financially. That’s why this kind of alimony is often called “rehabilitative."
Current law in Maryland is that rehabilitative alimony can only be awarded when a party provides evidence of each of the following twelve things that apply to his or her case. You can find these in Md. Code Ann., Fam. Law Art. § 11-106, but don't assume you understand what these factors mean just because you can read them! Statutes are put in the books by the legislature, but the individual words on the page are later interpreted by Maryland’s appellate courts. Generally speaking, it is best to have a lawyer with a solid, working knowledge of Maryland family law help you to understand issues of alimony and other family law statutes and most important, to help you get the result you need:
The ability of the party seeking alimony to be wholly or partly self-supporting;
The time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
The standard of living that the parties established during their marriage;
The duration of the marriage;
The contributions, monetary and non-monetary, of each party to the well-being of the family;
The circumstances that contributed to the estrangement of the parties;
The age of each party;
The physical and mental condition of each party;
The ability of each party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
Any agreement between the parties;
The financial needs and resources of each party, including:
(i) All income and assets, including property that does not produce income;
(ii) Any award made under §§ 8-205 and 8-208 of this article; 
(iii) The nature and amount of the financial obligations of each party; and
(iv) The right of each party to receive retirement benefits;
- Whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
Md. Code Ann., Fam. Law Art. § 11-106(b).
There are supposed to be two limitations on rehabilitative alimony, time and amount. So a court may say, “Okay richer spouse, you have to pay $1000.00 a month in alimony for two years. That should be enough time for poorer spouse to get on his or her feet." But, like I said before, there are ways around what the law intends and what actually happens.
Because of the difference between the two, here is a warning about “rehabilitative" alimony: if you are the person who may have to pay the alimony, be sure your lawyer does everything he or she can to settle your case, in a written agreement with very specific language, strategically placed in several places in the agreement. And don’t settle for the lawyer’s language. Be sure the lawyer knows and uses the specific language in the Maryland statute that “waives" or does away with, the right to have a court change an alimony award later (also known as “modification").
Why is this so important? Because if you have a written agreement that limits the time and amount of alimony before the final divorce hearing, and the language is correct and correctly placed, whatever is in the agreement can literally never be changed. Ever. However, if a court awards rehabilitative alimony for a limited amount and time, if the payee spouse can claim that something has changed that makes him or her unable to work or be self-sufficient, both the amount and the time period may later be changed by the court, if the payee spouse asks in time and proves certain other things. This is called modification, which will be discussed next time.