General Maintenance Law
In Washington, alimony is called maintenance. Maintenance is the payment of money to the other party, or sometimes the payment of a bill on behalf of the other party, in order to support the other party. Contrary to the belief of many, there are no formulas, set by law, to calculate the amount of maintenance a spouse is entitled to. Each case is different, though some judges are more predictable than others. Many factors are involved in determining whether maintenance is awarded at all, and the amount of the award. These factors include the following:
- The financial future of both parties
- How much property each party will have after the divorce
- The future earning capacity of the parties
- The health and ages of both parties
- How long it will take to gain education or training
- How long you were married
- The life style you enjoyed during the marriage
The above list is not complete. The court can consider any relevant factor. Maintenance is not decided in a vacuum. The courts often consider how much child support is being paid and how much property each party will have after the divorce. It’s often said that maintenance is awarded when there is a “need” and “an ability to pay.” Sometimes, after you consider how much child support there is, how much money is needed to address existing debt, and the amount needed to simply supply shelter, food, and basic necessities, there is not enough money left to pay maintenance. Maintenance is sometimes tied to a specific plan of education or training.
Often attorneys and judges talk about long-term and short-term marriages. Non-controlling comments about such marriages suggest that parties in short term marriages should be returned to the financial position they had before marriage while parties in long term marriages, approximately twenty-five years or longer, should be placed in roughly equal financial positions for the rest of their life after considering their earning capacities and income from assets awarded to them. Therefore, maintenance would likely be rare or of short duration in short term marriages and more common and awarded for longer periods in long-term marriages. Again, such discussions are not controlling on judges but they do offer common arguments for and against maintenance.
In the Washington Court of Appeals, Division One, which is the court that hears appeals from King County (Seattle), ruled in divorces involving marriages of 25 years or more, the court must put the parties in roughly equal financial positions for the rest of their lives. In re Marriage of Rockwell, 141 Wn. App. 235, 243, 170 P.3d 572 (2007), review denied, 163 Wn.2d 1055, 187 P.3d 752 (2008). If you have a long term marriage, your attorney should be familiar with this case in order to protect you. One strategy to maximize or minimize maintenance is to make use of a Certified Divorce Financial Analyst (“CDFA”). Many attorneys are unaware of the skills of a CDFA and fail to make use of these experts when presenting their cases regarding the award, or limitation of maintenance.
No one can give you a very good estimate of what you can expect in regards to maintenance without knowing a lot of facts about both spouses, the involved debts, property, incomes and overall financial futures of both parties. However, it is probably true to say that the higher your level of assets and income, the higher the likelihood there will be significant award of maintenance.
Misconceptions about Maintenance
There are many misconceptions about maintenance awards in Washington. The misconceptions include the following:
- Men cannot be awarded maintenance
- There are formulas to determine the amount of maintenance
- The award of maintenance is affected by the misconduct of one spouse or the other. However, the court can consider if the abuse of a spouse affected his/her employability and can consider if a spouse has hidden, transferred or wasted assets.
Modification of Maintenance
Unlike property divisions, maintenance awards can be modified or changed after your divorce is final. Say maintenance was awarded in part because the higher earning spouse had a very successful but unique business. If, by no fault of the paying spouse, market conditions dramatically change and the business fails and the payor cannot easily duplicate his or her earnings elsewhere, that would be a factual basis for possibly changing the maintenance. Parties however can agree that a maintenance award is not modifiable. Obviously, such decisions should be very carefully considered, skillfully negotiated, and clearly drafted.
Special Considerations About Maintenance
a. No divorce
If your spouse has abandoned you, or is not paying enough to adequately support you, it is possible to petition for spousal support without filing for divorce. This is called “separate maintenance” and many attorneys have never heard of it, or have forgotten it if they ever knew about it!
b. Emotions of maintenance
Maintenance is often an emotionally charged issue. Some spouses are ashamed to ask for a “hand out” and some spouses are more than willing to take on more than a fair amount of debt and to receive an unusually low amount of property but will do everything they can to avoid having to write a check every month to their ex-spouse.
c. Taxes and maintenance
There are important tax ramifications to maintenance. Maintenance is income to the receiving spouse and a deduction to the paying spouse, even if the paying spouse does not itemize deductions. Do not just assume what you think is maintenance is what the Internal Revenue Service (“IRS”) will consider “maintenance.” Payment of things like your ex-spouse’s rent can be considered rent, but you do not want there to be ambiguity about what is or is not maintenance. An attorney can help assure what you believe is maintenance, is also considered maintenance by the IRS. You do not want the IRS to decide that what has been exchanged between the parties is “property” and not maintenance.
d. Termination of maintenance
An attorney can help you make sure the maintenance ends or terminates appropriately. Unless the parties agree otherwise or the divorce decree otherwise provides, maintenance terminates upon the death of either party.
e. Securing payment of maintenance
You should consider whether the payment of maintenance should be secured. What would happen if the paying party dies one month after the divorce is finalized? If there is life insurance securing the maintenance, special care is required to assure the payments on the life insurance premium are timely paid. I’ve had a client come to me after her ex-husband contracted brain cancer and forgot to pay his life insurance premium. His illness made it impossible for him to pay his maintenance and he soon died. However, because the receiving spouse was not adequately protected, she did not have the right to inquire about the life insurance premium and pay it if her ex-husband did not. The result was tragic.
f. Maintenance and child support
Because maintenance is income to the receiving spouse and a deduction on taxes of the paying spouse, it of course affects child support. Often attorneys ignore this effect and they should not.
Courts have a wide amount of discretion when it comes to maintenance. A judge might award less maintenance, but give the responsibility to pay more debt to the higher wage earning spouse. The court might give less maintenance if the lower wage earning spouse receives more income producing assets than the higher wage earning spouse. Maintenance is just one tool available to a court to make overall fair and equitable financial provisions between divorcing parties.
I encourage you to call for a free phone consultation about any question you may have about maintenance.
The Washington State legislature, your elected representatives, have tried to give some guidance to the court’s discretion by creating a written law (statute) concerning maintenance. The Washington State Legislatures statue regarding maintenance is found in the Revised Code of Washington at 26.09.090, and is quoted below:
Maintenance orders for either spouse — Factors.
(1) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity, or in a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse. The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, after considering all relevant factors including but not limited to:
(a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his skill, interests, style of life, and other attendant circumstances;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, physical and emotional condition, and financial obligations of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs and financial obligations while meeting those of the spouse seeking maintenance.