It Isn’t What You Think or Hear on TV about Stars . . .but It is There
Divorce actions routinely involve financial issues presenting as complex determinations of support for children, tax consequences, and asset and liability division. However, one financial issue that may be less common in divorce is the concept of what many think of as “alimony”.
In fact, in Indiana, there is not a type of financial support for a spouse called “alimony”. Indiana has a related legal comparison that is called spousal maintenance, but unlike alimony available in some states, it is restrictive in what and how a spouse receives this financial support during or after a divorce.
In the movies and on TV, the concept of alimony is often played out as one spouse who does not work and lives off of monthly support payments from the other spouse-much like child support for adults. There never seem to be any strings attached-money just “magically” comes to the receiving spouse each month.
However, in Indiana, this is not the case. And for that fact, very few cases across the country involve large amounts of money paid as spousal maintenance or support. Nevertheless, spousal maintenance is available in Indiana and covered by several Indiana statutes.
These statutes define and generally restrict spousal maintenance, which may or may not be awarded in individual cases. There are certain times and reasons for spousal maintenance to be awarded, and the decision to award same is under the discretion of the trial court.
Any aspect of a divorce is legally and emotionally and sometimes financially challenging. A better outcome is generally achieved by understanding legal tools available and not dismissing any of them in any case, from a modest case framed by child-custody issues to the high-net-worth childless couple.
During the period of time a divorce actually pends, while the details of divorce are getting narrowed and settled or ready for trial (generally referred to as “the pendency”), spousal maintenance may be awarded, but terminates upon the finalization of the decree or dismissal of the action1.
This may seem incongruous with the concept of determining if a spouse really needs maintenance. However, this temporary maintenance is sometimes necessary to allow the parties to use the pendency of the litigation to maintain any type of life-style (such as with the stereotypical stay-at-home parent) to restructuring finances and employment and leverage the financial and lifestyle power-balance shared during the marriage.
However, because the litigants and trial courts face making a decision with incomplete information, pendency maintenance is subject to being squared up in the final divorce order. The pendency statutes specifically note they are without prejudice to the parties. Thus, the trial court may adjust the divorce allocation to account for any pendency maintenance.
Spousal maintenance needed or desired upon dissolution is more constrictive in scope and narrow in what a trial court can order. There are only three types of post-divorce maintenance: (1) the spouse must be mentally or physically incapacitated, or (2) lacking sufficient skills to make income for his/her needs, or (3) be caring for a child with a physical or mental incapacity which makes the spouse unable to work2
These are limited circumstances which allow the award of spousal maintenance upon dissolution. The first and third, where a spouse or child is incapacitated, can last as long as the incapacity lasts. These are the less common situations where spousal maintenance is awarded to be paid after a divorce is final.
The most common factual situation is the example set out with the temporary maintenance situation addressed in connection with temporary maintenance. Where a parent, for example, has given up his or her career, or not been able to have a career, the trial court can award maintenance during the pendency and after the divorce.
This is called “rehab maintenance” when awarded at the time of the divorce. To make such an order, the court must consider the educational level, training, and earning capacity of each spouse before making an award. This is an important concept, as the duty and burden to put this into evidence is the spouse who is seeking rehab maintenance.
The purpose of rehab maintenance is to give a trial court a tool to level the earning playing field, a common example being a doctor with a stay-at-home spouse who forgoes a career to raise their children. The potential salary range of a doctor, particularly a specialist, compared to an entry level job for an unskilled former partner, is apparent.
In fact, the stated statutory purpose of rehabilitative maintenance if for the spouse to “acquire sufficient education or training to get an appropriate job”.3 However, the trial court may not order rehab maintenance to last more than three (3) years.
So, if one spouse was the caregiver and/or homemaker during the marriage, upon dissolution, if they have the capacity to work and do not have a child with an incapacity which forces them to remain at home to care for the child, the most spousal maintenance they would receive would be three (3) years to enter or re-enter the workforce and be able to support themselves. This is very unlike how “alimony” is seen in entertainment media-there is a limit to this support.
If rehab maintenance alone will be insufficient, there are several other considerations a lawyer and client might discuss and try to effectuate. For instance, a spouse in this situation may seek rehab maintenance and a division of the marital estate in a way that is different from 50/50, which is the presumption in Indiana.
This is why it is critical to help your attorney understand your unique situation. The General Assembly has adopted numerous statutes to empower Indiana’s trial court judges to create a just and reasonable division of the marital estate. And Indiana’s trial court judges take this very seriously, but cannot make up for shortfalls in the evidence by an ill-though trial strategy.
It should be apparent that a divorce is a complex transaction—including one financial in nature—with life-long consequences. This being educate about this process, such as by reading this blog, plus fully participating in this difficult process is key with counsel and a neutral and detached judge.
While in Indiana spousal maintenance is strictly defined and limited, it is available in the right case during a divorce and in limited cases after a divorce is And it may be a factor in divorce proceedings, but unlikely to be akin to what is seen in the movies and on television.
At Ciyou & Dixon, P.C. we hope that this blog has been educational in the nuances of spousal maintenance and the reality of same versus the media image. This blog post was written by Bryan L. Ciyou, Esq. and Jessica Keyes. Ciyou & Dixon, P.C. attorneys practice throughout the State.