Calculating Maintenance Payments
Temporary Maintenance
Courts sometimes will award temporary maintenance.
Temporary maintenance is payments made before the divorce is finalized. Permanent maintenance is what is awarded when the divorce is finalized. Despite being called permanent maintenance, maintenance is generally not permanent and is usually awarded only for a certain period of time to allow the spouse receiving maintenance to obtain employment or to go back to school.
Maintenance, when awarded, is usually for a specified time period and not for an indefinite term. The general rule is the longer the marriage the longer the maintenance, but this will depend on the specific facts and circumstances of the case. Where both parties were making nearly the same amount of income, it is less likely that either party would be awarded maintenance, but will depend on the circumstances of the case. The only time maintenance is for an indefinite term is when the couple have been married for more than 20 years. And, as with shorter marriages, whether maintenance is awarded will depend on the facts and circumstances of the particular case. Where one party may have difficulty obtaining work due to age or illness, for example, the party is more likely to be awarded maintenance for an indefinite period of time.
Parties can always come to an agreement with each other to set the terms of the maintenance, subject to court approval.
Initial Findings
First, the court must make written or oral findings concerning the following:
- The amount of each party’s gross income;
- The marital property apportioned to each party;
- The financial resources of each party, including income from separate or marital property; and
- Reasonable financial need as established during the marriage.
Second, only after making these initial findings does the court determine the amount and term of maintenance that will be equitable to both parties. Courts consider the guidelines for the term and amount of maintenance, as set forth in the statute. The factors include:
- The financial resources of the recipient spouse;
- The financial resources of the payor spouse;
- The lifestyle during the marriage;
- The distribution of marital property;
- Both parties’ income, employment, and employability;
- The historical income of a party;
- The duration of the marriage;
- The amount and term of temporary maintenance;
- The age and health of the parties;
- Significant contribution to the marriage or to the advancement of a party;
- Whether the parties’ circumstances warrant a nominal amount of maintenance; and
- Any other factor that the court deems relevant.19
Third, after considering all of these factors, the court then applies what has been historically known as the “threshold test.” Under this test, the court may award maintenance only if it finds:
- That the party seeking maintenance lacks sufficient property to provide for his or her reasonable needs; and
- That the party seeking maintenance is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it inappropriate for the spouse to be required to seek employment outside the home.
Term of Maintenance:
Greater than 20 years of marriage, the court can award an indefinite term or a term of 10 years or more; if the court orders a term of less than 10 years, it must make specific findings as to why it did so.
Specific formulas for determining maintenance awards between 3 and 20 years. Less than three years of marriage the court may only award maintenance if if “given the circumstances of the parties, the distribution of marital property is insufficient to achieve an equitable result.”
Amount of Maintenance
- 40 percent of the higher earner’s monthly adjusted gross income MINUS 50 percent of the lower earner’s monthly adjusted gross income
After you have made this initial calculation, you must take 40 percent of the combined adjusted gross incomes of the parties and make sure that the recipient does not receive more than 40 percent of the combined income after the maintenance is added to the income of the recipient.
Modification of a maintenance order requires a showing of changed circumstances so substantial and continuing as to make the terms of the existing order unfair. This is a two-pronged inquiry — the change of circumstances must be both substantial and continuing.