By: Elizabeth A. Eichholtz, Attorney
In any dissolution of marriage case, a question frequently posed by potential clients is: “Will he/she/I be ordered to pay alimony?” In Indiana, what was historically referred to as alimony is now termed “spousal maintenance.” There are two (2) categories of spousal maintenance: (1) temporary spousal maintenance, which may be ordered to be paid by one party during the pendency of the divorce; and (2) spousal maintenance paid once the divorce has been made final by the court.
Absent an agreement by the parties, spousal maintenance may be ordered to be paid after the court’s entry of the Decree of Dissolution in one (1) of three (3) limited circumstances:
(1) if a party is incapacitated due to a physical or mental disability such that they cannot work and support themselves;
(2) if a child of the marriage is disabled and the party taking on primary care and custody of that child will not be able to work to support himself/ herself, and the child due to the caretaking responsibilities which are required; or
(3) if “rehabilitative maintenance” is deemed appropriate when one spouse is required to further his/her education or training prior to a re-entry into the workforce due to the fact that their education, training or employment was interrupted for homemaking or child rearing reasons.
Under Indiana law, rehabilitative maintenance may only be ordered to be paid for up to a period three (3) years. Further, one seeking an award of rehabilitative spousal maintenance would be well advised to present a thorough proposal to the court outlining the specific rehabilitative maintenance request, including, whether they have been accepted and/or even applied to the program they are seeking payment towards.
The second category of maintenance, temporary maintenance, may be ordered by a court at the preliminary hearing or agreed upon by the parties to be paid during the pendency of the divorce action. Temporary spousal maintenance is more common than an award of spousal maintenance following the finalization of a divorce. The purpose of temporary spousal maintenance is to allow the parties to a divorce to maintain the “status quo” while the matter is pending and insure that all liabilities are paid and obligations are met. In fashioning a preliminary order and determining if an award of spousal maintenance is appropriate, a court may consider the percentage of marital liabilities each party has agreed to be responsible for or will be ordered to pay, which party will be living in the marital home with the children during the pendency of the divorce and the discrepancy in the parties’ earnings or income in relation to the existing marital obligations. When appropriate, the court may order one party to pay the other’s obligations, such as the monthly mortgage, utilities on the marital residence, car payment, or minimum monthly payments on credit cards or outstanding loans. Alternatively, a Court may order a spouse to simply pay a sum certain to the other parent each month.
If you would like to request an award of spousal maintenance or believe your spouse intends to seek the same, it would be beneficial to speak with attorney who has had experience in litigating such matters due to the fact that a spousal maintenance award is extremely fact-sensitive. Further, a request for spousal maintenance that is without any basis can distract the parties from reaching a reasonable settlement and further enflame the already emotional proceeding. Often, the spouse who has a lower earning potential will inquire about spousal maintenance. In Indiana, courts more frequently account for a disparity in earning potential between divorcing spouses by awarding one party a larger share of the net marital estate and not through an award of spousal maintenance.[formidable id=”6″ description=”1″]