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Spousal Support - Divorce and Alimony

Spousal Support, Alimony and Maintenance: Who Gets It?

Spousal support goes by a lot of different names in the world of divorce law: maintenance, alimony, and spousal support can all be used interchangeably. Maintenance is the more modern, most common term that courts use today, though the concept of maintenance has been around for quite some time. In fact, the idea of alimony dates back to the Middle Ages. But modern maintenance has changed a lot since then. Here’s a breakdown of what you should know about maintenance and how it works today. 

What is “Maintenance” Spousal Support and Who Pays It? 

Maintenance is when one spouse provides financial spousal support to his or her Ex. Maintenance helps ensure that the spouse with lower income can still support themselves after the divorce. Courts want to make sure that after a divorce, each spouse lives the same type of lifestyle they had during their marriage, which can sometimes lead to legal issues in the alimony agreement negotiation. To do this, courts approximate the “marital standard of living” and make sure the maintenance payment provides you and your Ex the proper funds to maintain that standard of living on your own.  

Historically, the wife received maintenance because the husband had a duty to support his wife financially. Maintenance used to also account for whose “fault” the divorce was and would make that spouse pay the other. Today, the more modern rationale for maintenance is rooted in “economic partnership”. Courts now look less at the traditional male and female roles within a marriage, and instead, look at the amount of money each person makes. So yes, if you are a woman, the breadwinner, and the primary caretaker of your children, you may have to pay your Ex maintenance. 

If you are a Stay-At-Home-Mom, discover more must-knows by reading “How to Prepare for Divorce if You are a Stay-At-Home-Mom.”

If you make more money than your spouse, check out “Breadwinning Women Face an Uphill Battle When Marrying and Divorcing.”

Is This Related to Child Support?

Maintenance is completely separate from child support and parental responsibilities. You can receive child support but have to pay your Ex maintenance. This would be most likely if you were the both primary caretaker of your children and the breadwinner of the family. This may seem like a shock, but as more mothers become the primary income earner, paying spousal support maintenance to their husband is becoming more and more common. If you are the breadwinner of your family, it is important to have your financials organized and in check. Your attorney will ask for your financial documents almost immediately at the beginning of your divorce journey. 

Maintenance statutes are present in every state, but the way courts go about them in each state can differ. Maintenance is typically a factor test. Courts look at the length of the marriage, the ages of the couple, the job skills they have, the income gap between the couples, and much more. Not every couple going through a divorce are “eligible” for maintenance payments. For example, if a couple married for 15 years has one partner who makes $300,000.00 a year and the other who did not go to college and stayed home to raise the kids, this would definitely be a maintenance case.

This means that the higher-earning spouse would have to pay maintenance to the other. But, if a couple was married for 2 years and had pretty equal levels of income, the likelihood of this being a maintenance case is much lower. These are just a few details that contribute to the legal issues of determining alimony and spousal support.

Changing Your Maintenance

Maintenance can also change over time. Originally, maintenance was a lifetime commitment, meaning that once someone was on the hook for maintenance, they were on the hook for the rest of their life. Now, it’s harder to obtain permanent maintenance, but not impossible. Instead, courts usually award temporary maintenance. Maintenance can change based on the circumstances you and your Ex fall into after your divorce becomes final. These circumstances can range from you or your Ex marrying someone else to a change in financial earnings, both of which can affect spousal support.

How to Modify Maintenance

The key to modifying maintenance is to prove that a substantial change in circumstances has occurred. Whoever wants to modify the maintenance has to prove that a substantial change in circumstances has in fact occurred. Either spouse can ask the court to modify maintenance. For example, if you are paying your Ex maintenance and your Ex gets a huge promotion at work and their salary increases, this would be a substantial change in circumstances. You could argue they do not need as much spousal support anymore, and that your maintenance payment should be modified to a smaller amount. On the flip side, if your Ex in that same situation got laid off, they can argue that there was a substantial change in circumstances and that they need more maintenance from you because now they have no income. 

Nobody likes paying maintenance. You can contract out of maintenance during your divorce journey if you want. Within your divorce settlement agreement in Illinois, for example, you can “waive” your right to maintenance, and your Ex can too. If you choose to do this, in your marital settlement agreement, you would have a section that states you do not want maintenance, and you will not ask for it in the future. This is a great option if you and your Ex earn about the same income, or for whatever reason you agree that there is no need to pay spousal support. You may want to consider getting a financial consultation to look at your options with the help of an expert and to better understand the details involved in these legal issues.

Maintenance and Taxes

One thing of note is that maintenance is taxed to the recipient, so keep that in mind if you are awarded maintenance. It’s important to ensure you have your finances in check during and after your divorce. Because things like maintenance can change, it’s a good idea to have your finances organized in case anything comes up later down the line.  

Conclusion: Spousal Support Varies

Spousal support maintenance is not something to be afraid of or embarrassed by whether you receive it, or pay it to your Ex. Maintenance is something that comes up in any divorce in some way, shape, or form. The modern approach to maintenance is to ensure that you and your Ex can maintain the same standard of living you two had during your marriage. Maintenance is a huge part of the financial elements of your divorce journey, so you and your attorney will definitely discuss this issue early on in your conversations so you adequately negotiate what is right for you. 

NOTES

Alexa Valenzisi is a rising 3L student in Chicago committed to the legal issues that arise in child law and education law. She aims to work in education law or family law after graduation. 

Whether you are thinking about divorce, dealing with it, or recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oftentimes complicated experience of breaking up and reinventing. 

SAS offers all women six free months of email coaching, action plans, checklists, and support strategies for you — and your precious future. Join our tribe and stay connected.

Frequently Asked Questions about Divorce

The Top 5 Frequently Asked Questions About Divorce

One of the most daunting parts of a divorce is not knowing – not knowing the answers to questions, not knowing the steps to take, not knowing what to do first, and surely, not knowing the big and small outcomes of your every move. This article will review five common or frequently asked questions about divorce. And in response to those questions, we’ll give you a quick answer that helps manage your expectations and also, lets you hit the ground running. 

1. How long will it take for me to get a divorce? 

Frequently asked questions about timelines are often at the forefront for those eager to get out of their marriage. From a legal perspective – and from a bird’s eye view – the divorce process goes like this: 

  • Filing a Petition for Dissolution of Marriage 
  • Financial disclosure and discovery 
  • Dispute any issues you and your Soon-to-Be-Ex may have 
  • Drafting Divorce Agreement Papers 
  • Judgment for Dissolution of Marriage gets granted 

Those are the primary steps in any divorce case. If you and your spouse* are in agreement with everything (splitting up marital assets, debt, custody, maintenance, etc.), you can pretty much skip steps 2 and 3 and go straight to drafting the divorce agreement with your lawyer. 

SAS Tip: Even if you think you and your spouse are in agreement with the splitting of assets and debt, and how the children will be cared for, it is ALWAYS a good idea to get a private legal consultation to hear what your rights are and what you are entitled to before you commit. Another level of due diligence is to meet with a certified divorce financial analyst for a financial consultation to divorce and to drill down on what would be the best way for you to split things. Economically, it is harder for women after divorce.

What affects the duration of the divorce process?

Because frequently asked questions about the divorce process duration have so many different answers, here’s a run-down. If you and your spouse do not agree on everything, your attorneys will attempt to negotiate a deal and ask you for some financial documents so that they can figure out what is an equitable distribution or resolution. After this, documents signed by both parties will be presented to the judge. The judge will then enter a divorce judgment that states you and your Ex are divorced. 

You will always have the option to get a judge involved if you and your spouse cannot come to an agreement about a part of your divorce agreement. This could be a trial but more likely, you will have a hearing, which is much shorter and only focused on a specific issue. Involving a judge is a longer and more expensive process, but also know that less than 10 percent of divorce cases in the United States go to a full-blown trial. A trial is useful if the settlement proposal you receive is not something you would agree with. 

So overall, how long your divorce takes really is dependent on the situation. You may be in total agreement with your spouse and can get in and out of the process in a month. Sometimes, however, with more complicated situations, the process can be lengthier. Your attorney can probably give you an estimate.

If you are actually asking, how long does it take to get over a divorce? Ah, that is a different question entirely.

2. How will our property be divided?

Most states equitably divide the marital assets you and your spouse acquired during your marriage. (To know for sure about your state, check out “Divorce Property Division: Community Property States vs. Equitable Distribution States.

The first step in dividing property is figuring out what you have, and the value of everything. Then, your attorney figures out what you and your spouse jointly own. Anything jointly owned goes into the “marital estate” and everything in that marital estate is divided equitably. Of course, you can make agreements with your Ex about how you want to divide your assets, and the court will usually honor such settlement agreements. A common example of this is if you and your spouse own a house, and one of you wants to buy out the other. You and your attorney will put language in your divorce agreement about that, and the judge will most likely find this to be a sufficient agreement. 

Keep in mind that debt acts the same way as assets – and is dependent on whether you live in an equitable distribution state or a community property state.  For example, if you live in an equitable distribution state, and you have a student loan or debt on a credit card that is in your name, then that debt is considered personal property and is not divided between you and your spouse. If you live in a community property state, the debt is considered marital debt.  So where you live matters.

3. Will I receive child support and/or spousal support? 

Again, it depends! First and foremost, child support and maintenance are two separate areas of financial support and are determined separately. Spousal support or maintenance, previously known as alimony, is support so that you and your Soon-to-Be-Spouse can maintain the standard of living you had during the marriage. Child support covers the everyday costs of children.

You can receive maintenance, child support, or both depending on the circumstances. If you are the custodial parent (your children reside primarily with you), you will most likely receive monthly child support. Child support is supposed to cover the basic necessities of the children – like food, clothing, and shelter. You can modify child support at any time after your divorce is finalized too. 

SAS Tip: Try to forecast what you will need in the future for yourself and your children so you negotiate for it in the divorce document rather than later. It costs money in legal fees and time to go back and revisit a divorce document!

Frequently Asked Questions About Divorce and Maintenance

If you make less money than your Ex, you will most likely receive maintenance. Keep in mind, however, that maintenance is a factor test, and not every divorce warrants maintenance. Maintenance can also be modified after your divorce proceeding. You can also waive maintenance, meaning that you do not even want to ask your Ex for spousal support at any time now or in the future – but you may ask for something else as part of your divorce negotiation.

SAS TIP: Be prepared. If you are a Stay-At-Home-Mom, discover more must-knows by reading “How to Prepare for Divorce if You are a Stay-At-Home-Mom.” If you make more money than your spouse, check out “Breadwinning Women Face an Uphill Battle When Marrying and Divorcing.”

4. What about our kids?   

Depending on the state you live in, child support and college tuition can be ordered until a child reaches the age of 21. With issues concerning custody and visitation, however, the young person is considered an adult when they turn 18. 

So, when it comes to custody or visitation, courts only deal with minor children (children who are not emancipated and/or under 18) during a divorce. If you and the father of your children cannot agree on a fair custody or visitation schedule, the Courts will determine the time each parent spends with the child, and who gets to make decisions on the child’s behalf. 

Custody Considerations

For custody, the first issue, you and your spouse will come up with a parenting schedule. This can be a complete 50/50 split of parenting time, or you can have most of the parenting time with your Ex having strict visitation limits. If you and your spouse can negotiate this directly or with the help of your lawyers, all the better. Left to the Courts, the Courts will determine the custody schedule based on the best interest of the child. It’s important to know that in most states, the Courts will lean on you and your spouse having equal time/custody of your children, so 50/50.

The decision-making portion goes primarily the same way. You and your spouse can have joint decision-making, meaning that you two have to agree on big decisions in the child’s life, or you can have sole-decision making. The courts again focus on what is in the best interest of the child.

If you wonder how the children will survive the divorce, please read this piece to help guide your behavior and promote your best decisions.  “Will the Kids Be All Right? Long Term Effects of Divorce on Children.”

5. What does a judge consider during my divorce? 

These are frequently asked questions for a reason: the answers really matter. Your judge affects the outcome of your divorce! Most states have a “no-fault” divorce rule. This means the judge or the state does not care whose fault it was that the divorce is happening. Make sure you understand the difference between No-Fault and Fault Divorce.

If you go to court, a judge will look at the facts of your case, and try to make sure that there is a fair division of property (per your state’s divorce laws) and that the children’s best interests are followed. 

Your judge will take all of the facts presented into account, and figure out, based on your specific situation, what is a fair divorce agreement to come to. Make sure that if you are going to trial, or have to argue any part of your divorce in front of a judge, that your attorney knows exactly what you want and what you would and would not agree to. Transparency is the best tactic with your lawyer so that they can properly advocate for your wants and needs in front of the judge. 

Conclusion

Be kind to yourself. It’s natural that you may have some of these frequently asked questions when it comes to the topic of divorce. In fact, even as your progress through the divorce process, the questions never stop coming. 

If you are like a lot of people, chances are you just want to “get it done,” but we urge you: please be mindful of your future and the future of your children. Do not simply get things done, rush, or push through without doing due diligence in finding out what would be the best step for you personally, legally, and financially as a woman.  Read our “55 Must-Do’s on Your Modern Divorce Checklist,” so you take control, smartly and healthily. Remember: even if we answered your frequently asked questions, you’ll still want expert advice customized to your situation.

We wish you good luck and are always here for you.

About the Author

Alexa Valenzisi is a rising 3L student in Chicago who is committed to child law and education law. She aims to work in education law or family law after graduation. 

Notes

Whether you are thinking about divorce, looking for answers to your frequently asked questions, or recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oftentimes complicated experience of breaking up and reinventing. 

To all women, SAS offers six free months of email coaching, action plans, checklists, and support strategies for you—and your precious future. Join our tribe and stay connected.

* At SAS, we support same-sex marriages. For the sake of ease, we may refer to your spouse or Ex as “he/him” but we understand that exes come with many gender identities.