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.
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 their ability to support themself is materially affected. Disability maintenance is referred to as such. Generally, your spouse does not have to be completely unable to work – if he or she is only able to work part-time, or otherwise cannot earn what they would have been able to earn otherwise, the court may order 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 he or 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, spousal maintenance can be ordered even if your ex remarries.
Spousal Maintenance – Disability
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 themself can be materially affected. This is called caregiver maintenance, and like disability maintenance, it can be temporary or permanent.
Spousal Maintenance – Rehabilitative
The court certainly can order rehabilitative maintenance if, due to your spouse’s education level, her job history, or another reason, the court determines she needs some additional help. 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 he or she has been out of the workforce for a significant period of time during the marriage, he or she needs additional training, education, or simply more time to find a job to support themselves. 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.
Spousal Maintenance – Prenuptial Agreement
Even if a judge does not order spousal maintenance, spousal maintenance can still be imposed by a prenuptial 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, you are held in contempt of court if you fail to do so.
Maintenance – Modified or Terminated
If spousal 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. Getting maintenance modified or terminated can be a difficult process. The burden of proof, however, will be on you to prove that the situation has 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 your spouse does not work due to disability, caring for a disabled child, or needs temporary assistance getting back on their feet, be sure to spell that 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 (if you agreed to pay spousal maintenance for 10 years in exchange for a pension to be free from action in the divorce settlement), you will not be able to modify that maintenance.