If I Get Maintenance, Do I Really Have To Get A Job?

On behalf of The Marks Law Firm, L.L.C. posted in Maintenance on Friday, May 10, 2013

Consider the following scenario. Husband and Wife, both physicians, marry. Wife becomes pregnant with the couple’s first child and stops practicing medicine. The couple has two other children, and Wife dedicates herself to raising the children full time rather than working, and Husband agrees or even encourages this arrangement. After ten years, the Husband and Wife get a divorce, and the court orders Husband to pay Wife maintenance. Does Husband have to pay maintenance forever, or does Wife have some responsibility to go back to work?

When clients ask us about modifying a maintenance order, the question usually revolves around some variation of the above scenario – the court ordered maintenance because one party had been out of the work force for an extended period of time, usually by agreement of the other party, and cannot just jump right back into the work force.

Maintenance is not intended to create a guaranteed income for life from the former spouse; it is considered a temporary measure to cover those reasonable expenses a spouse incurs and cannot pay through her own reasonable income from employment or property – including property from the divorce. In Missouri, absent a permanent disability that would make returning to any employment impossible, we impose a duty on the spouse receiving maintenance to pursue gainful employment and attain self-sufficiency. In some cases, however, a spouse may have always had a low-income potential because of lack of education, training or experience. In that situation, the court expects no more than that potential. Furthermore, if that spouse was in a long marriage that produced a very high standard of living, that spouse has an interest in continuing that standard of living and the court can find that reasonable under the circumstances, so maintenance would be both appropriate and harder to modify.

In our example above, the Wife would have to return to practicing medicine. It may take some time to “catch up” and find reasonable employment, but the court will not allow her to avoid going back to work. If the Wife never returns to work, Husband can go back to court and ask that maintenance terminate because Wife should be able to support herself. Voluntary unemployment or underemployment will support a change in circumstance to modify maintenance – either a reduction or a complete termination.

What if a spouse is working but could make more money? In such a case, the spouse paying maintenance would have to prove the other spouse has much more earning potential and has intentionally chosen not to fulfill that potential. The spouse receiving maintenance will have to show a legitimate reason for not fulfilling that potential, from the nature of the job market to childrearing issues, to health problems.

Proving your case in maintenance modification may require hiring a vocational rehabilitation counselor to perform an assessment to determine for the court whether the spouse receiving maintenance is underemployed. Other experts may be needed as well.

Modifying maintenance can result from a change in circumstances of the spouse paying maintenance as well. For example, if the spouse paying maintenance becomes disabled or loses a high-paying job that new employment cannot reach in terms of income, those changes alone could support a modification. Also, if the spouse paying maintenance incurs higher expenses, including those related to caring for the children, those changes could factor into a modification.

If you have questions about modifying maintenance, contact us – we can help.

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