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.