Rethinking Maintenance for Modern Times

By September 10, 2014Divorce, Maintenance

alimony divorce maintenanceIn a recent article in Money magazine, Lili Vasileff argues that the method of determining spousal support – what used to be called alimony and we now call maintenance – has become too much of a hodgepodge from state to state, and even within states, too hard to calculate and apply.  Unlike child support, which most states calculate from a court-required formula based on incomes and estimates of expenses, maintenance has no formula and in many cases little guidance.

Alimony arose as a means to support a wife after divorce.  It has origins in rather sexist beliefs about the inability of women to provide for themselves and the mistaken premise that they must be dependent upon their husbands for life.  It also had a punitive aspect – to act as a deterrent for husbands who commit adultery or otherwise abandon their wives.

Now that women and men both work and raise children together, the idea of maintenance as compensation for dependency no longer holds, and modern dissolution statutes focus more on the need to help the less well-off spouse become financially self-sufficient.  Yet, these same statutes still allow a court enough flexibility to use maintenance as a punitive measure for misconduct.

Vasileff suggests six types of maintenance awards for different family situations:

  • Temporary maintenance for the period while a divorce proceeding is pending but not final;
  • Rehabilitative maintenance to allow a spouse sufficient time to become self-sufficient after perhaps an absence from the workforce;
  • Permanent maintenance payable until the death or remarriage of the spouse in situations where that spouse is not capable of making a sufficient living to meet reasonable needs;
  • Reimbursement maintenance to compensate a spouse for expenses incurred during marriage, such as putting the other spouse through graduate school;
  • Durational maintenance limited in time and not more than the length of the marriage;
  • Lump Sum maintenance that cannot be modified and may be paid in installments.

While these types of maintenance do help adapt to different situations, they do not offer the degree of guidance a reform effort would require.  Some of these forms are not even allowed in certain states, including Missouri.  Vasileff argues that we should focus more on economic empowerment and equality during marriage rather than rely on ambiguous sources of funding after divorce.

While the goal of economic equality during marriage is wise as counsel, it cannot be mandated in law.  However, the incentives maintenance offers to become more or less financially independent could help.  Missouri considers maintenance as a stopgap measure during the transition from life as a married unit to life as a single person.  We realize that the length of the marriage and the division of labor in the home during the marriage may make self-sufficiency for one spouse more difficult than for others.  That is why we give courts flexibility to determine an appropriate award.  Ideally, courts should look at the income and expenses of the less well-off spouse and determine any shortfall, look at the income and expenses of the more well-off spouse and see the capacity to pay maintenance, and make a reasonable award that would be modifiable as circumstances change – for example, the spouse receiving maintenance becomes more self-sufficient or the spouse paying maintenance suffers a permanent drop in income.

What is perfectly clear under Missouri law is that maintenance is not intended as a substitute for gainful employment – so long as physically and mentally capable, every spouse has a duty to become self-sufficient.  Maintenance generally should not be used as a form of punishment for marital misconduct (courts prefer that an unequal distribution of property effect such a wish), and rarely should be considered permanent and non-modifiable.

Perhaps maintenance will become easier to calculate and anticipate in the future, much like child support, with consideration given to length of marriage and disparity in incomes, but at present, only an experienced attorney can give a spouse a good estimate of what a court would award in a given state of circumstances.

If you have questions about maintenance, contact our St. Louis divorce attorneys – we can help.