In an Indiana divorce case you have two situations where spousal maintenance can be paid. The first is during the provisional period of the divorce. This is more common in situations where there is a discrepancy of incomes between the parties and one spouse needs to have spousal maintenance in order to maintain a certain level of existence. The second situation in which spousal maintenance can be paid is post decree. There are certain statutory requirements that have to be met for the court to order spousal maintenance.
Indiana has codified when a spousal maintenance award would be appropriate:
A court may make the following findings concerning maintenance:
(1) If the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected, the court may find that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court.
(2) If the court finds that:
(A) a spouse lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse’s needs; and
(B) the spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forgo employment; the court may find that maintenance is necessary for the spouse in an amount and for a period of time that the court considers appropriate.
(3) After considering:
(A) the educational level of each spouse at the time of marriage and at the time the action is commenced;
(B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both;
(C) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and
(D) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment; a court may find that rehabilitative maintenance for the spouse seeking maintenance is necessary in an amount and for a period of time that the court considers appropriate, but not to exceed three (3) years from the date of the final decree.
The most common spousal maintenance period occurs during the provisional part of a divorce. This typically comes about because one spouse has not been working during the marriage and needs a certain level of spousal maintenance to help maintain the marital residence or alternative living arrangements. If the spousal maintenance is part of the provisional order, it will terminate upon the final decree being entered (unless the decree calls for the spousal maintenance to continue).
It is also important to remember to preserve any spousal maintenance arrearages that may exist at the time the decree is entered. Indiana law makes the final decree controlling in a dissolution matter.
If it isn’t mentioned in the decree than it is usually considered waived. This would go for any past due spousal maintenance payments as well.
As the statute above sets out, there are three different reasons that a party to a divorce would be entitled to some level of spousal maintenance. The first is if a situation exists where the spouse is mentally or physically incapacitated or cannot care for themselves due to some form of limited ability. Under this scenario spousal maintenance will continue so long as the person remains limited in their ability to care for themselves.
The second scenario where a court would aware spousal maintenance is if the spouse is taking care of a special needs child and that care would require the spouse to not be able to work, then the Court may order spousal maintenance for a period of time.
Finally, the most common form of spousal maintenance occurs when one spouse was a stay at home parent and left a career or did not pursue further education because of the need for him or her to stay at home and be a homemaker. If the court finds that this person would need spousal maintenance so that he or she can further there education in hopes of landing a job, then the court can award spousal maintenance for a period of up to three (3) years.
There are limits that courts have to consider when ordering spousal maintenance. The Indiana Child Support Guidelines provide some guidance to the Court on how much should be ordered. When it comes to a temporary spousal maintenance order, the Guidelines provide that:
It is recommended that temporary maintenance not exceed thirty‑five percent (35%) of the obligor’s weekly adjusted income. The maximum award should be reserved for those instances where the custodial spouse has no income or no means of support, taking into consideration that spouse’s present living arrangement (i.e., whether or not he or she lives with someone who shares or bears the majority of the living expense, lives in the marital residence with little or no expense, lives in military housing, etc.).
It is further recommended that the total of temporary maintenance and child support should not exceed fifty percent (50%) of the obligor’s weekly adjusted income. In computing temporary maintenance, in‑kind payments, such as the payment of utilities, house payments, rent, etc., should also be included in calculating the percentage limitations. Care must also be taken to ensure that the obligor is not deprived of the ability to support himself or herself.
For Spousal Maintenance that extends beyond the decree, the Guidelines offer a similar stance in terms
of limits on amounts to be ordered:
It should also be emphasized that the recommendations concerning maintenance apply only to temporary maintenance, not maintenance in the Final Decree. An award of spousal maintenance in the Final Decree must, of course, be made in accordance with Indiana statute. These Guidelines do not alter those requirements. Theoretically, when setting temporary maintenance, child support should come first. That is, if child support is set at forty percent (40%) of the obligor’s weekly adjusted income, only a maximum of ten percent (10%) of the obligor’s income would be available for maintenance. That distinction, however, makes little practical difference. As with temporary maintenance, care should be taken to leave the obligor with adequate income for subsistence. In many instances the court will have to review the impact of taxes on the obligor’s income before entering an order for spousal maintenance in addition to child support to avoid injustice to the obligor.
The Law Office of Jeffery M. Haupt is located in South Bend, Indiana and helps people handle family law issues such as divorce, parenting time, child support, paternity, child custody and criminal matters such as DUI/OWI, drug offenses, traffic offenses, etc. The information in this blog should only be used for educational purposes and not be construed as legal advice. Nothing in this blog creates an attorney-client relationship between me and any readers of this blog. No attorney-client relationship is created until you have a document from me saying so. DO NOT POST ABOUT CASE PARTICULARS IN THE COMMENT SECTION.