Spousal maintenance (sometimes referred to as alimony) may be a possibility should you meet the statutory requirements. If a spouse is physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected then the award of spousal maintenance may be proper.
Additionally, if one spouse lacks sufficient property apportioned to them to provide for their basic needs and that spouse is the custodian of a child who suffers from a mental or physical incapacity that prevents the spouse from working, then that spouse may receive maintenance for a certain period of time.
When determining the amount of spousal maintenance to be paid the following factors must be considered: the educational level and earning capacity of each spouse, whether the spouse seeking to receive maintenance interrupted their education or employment to stay home and raise the kids, and the time and expense necessary to allow the spouse receiving maintenance to acquire sufficient education or seek employment.
In a situation where a spouse has suffered some sort of incapacity an award of maintenance will typically last during the period of the incapacity. For example, if Wife has a short-term disability that prevents her from working, and the disability is only expected to last six months to a year, the court may order husband to pay to Wife a certain sum of money for the duration of that time period.
Another thing to consider is if a spouse is taking care of a mentally or physically incapacitated child and that spouse cannot work due to the caretaking demands of the child. For example, Wife has to stay home because the child is so mentally or physically impaired that the child requires 24/7 care. Wife may not be able to work a regular job because she has to maintain the caretaking responsibilities for that child.
Another instance in which spousal maintenance may be awarded is for “rehabilitative maintenance.” For example, Wife has been the stay-at-home parent for a number of years. Now a divorce action has been filed. Wife may need to either go back to school or find a job. As noted above, a court may award spousal maintenance for a sufficient period of time that the court considers appropriate, but not to exceed three years from the date of the final divorce decree.
I have had clients (those who were ordered to pay spousal maintenance) ask if the court could order the other spouse to get a job. The answer is NO. Courts will order a specific sum of money for the purpose of allowing the spouse receiving it to be used for education or training that is sufficient for that spouse to find employment. Further, the court may award weekly, bi-weekly, monthly or quarterly maintenance payments.
A court is not going to say, “look, you need to get a job by this day and if you don’t you’re going to be in trouble.” Practically speaking, the spouse receiving maintenance may do what they want with that money, but the hope is that the spouse will use it to better himself or herself so they can get a job. If the spouse spends it on other things then that’s on them, because once the term for the payment of maintenance expires that’s it!
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