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Divorce & Family Law: Who Has The Legal Right When Things Go Terribly Wrong?

Maintenance

Maintenance is formally known as alimony and it is now called spousal support. Maintenance is from one spouse to the other for either a particular period of time or for an open ended period of time. There are several different factors that the court will consider and whether or not to order maintenance from one spouse to the other. In fact, there are over a dozen specific factors that the court can take into consideration.

The most important factor is the length of the marriage as well as the lifestyle that the parties have grown accustomed to during the marriage. Other factors include the earning capacity of either party, the educational background of either party and the ability for either party to get back on their feet, known as rehabilitative maintenance.

Maintenance is tax deductible by the payor and taxable to the payee. So in a typical situation where a husband is paying maintenance to an ex-wife, the husband will be able to deduct that maintenance payment from his taxes and the wife or ex-wife will have to include that maintenance payment in her taxable income.

The most common form of maintenance is maintenance for a specific period of time and terminating thereafter. In certain circumstances, you will want rehabilitative maintenance. Rehabilitative maintenance is maintenance for a short period of time, two to four years; whereby a person will be afforded the opportunity to get back on their feet, acquire some educational benefit or trade and be able to earn income on their own.

In other cases such as a long-term marriage case, maintenance can be for several years or even permanent. Permanent maintenance would be maintenance for an indefinite period of time subject to termination only by statutory events. Statutory events that would terminate maintenance include the deaths of either party, the remarriage of the recipient of maintenance or if the recipient of maintenance starts to live with someone else on a resident/conjugal basis. If any of those statutory events occur, then maintenance terminates.

There is also reviewable maintenance. Reviewable maintenance is maintenance for a particular period of months or years with a reviewable clause at the end whereby one party, the recipient, can come back into court and argue that he or she needs to continue to receive maintenance based on current economic conditions and life situations.

If you are someone going through a divorce and you are seeking maintenance, you will want to consult with an experienced divorce attorney to learn what options you have. An experienced attorney will be able to tell you approximately, or give you a range, of what type of maintenance you can expect to receive and for how long. If you are the payor of maintenance, you also want to consult with an attorney to find out if it's best to provide maintenance in gross which is non-modifiable or a maintenance program that lasts for a certain number of years and terminates or maintenance that lasts for a certain number of months and then is reviewable.

Maintenance is a highly contested issue in a divorce case. Other than custody and possibly the division of property, maintenance is going to be a big issue in your case. As I mentioned, there are over a dozen factors that the court can look to in awarding maintenance. However, there is no definitive guide and there is no definitive percentage that the court will look to when awarding maintenance. Maintenance is a case-by-case basis and thus you need an experienced divorce attorney to help you navigate those waters.

If you have a long-term marriage and if there is a huge disparity between the income of the parties, and if the parties had a substantial lifestyle, then the payor can expect to pay maintenance for a number of years at a considerable percentage of his or her income. On the other hand, if the parties have a short-term marriage, and they make basically the same amount of money, then there typically will not be an award of maintenance.

Please keep in mind that if you waive your rights to maintenance, said waiver is forever and permanent. Thus, you can never come back into court and seek maintenance from that party once you waive your rights to maintenance. On the other hand, if you reserve the issue of maintenance, then you do have the ability to come back into court at any time and seek the award of maintenance. Consult with an experienced divorce attorney to determine your rights and obligations for maintenance.
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