Spousal Maintenance

Question 1

1) Award of alimony
a) Different kinds of alimony awards:

Answer 1

a) Different kinds of alimony awards:

i) Permanent awards (also called periodic alimony)—these are not generally awarded
unless the couple had a long marriage and there was a long-term gap between each
spouses’ economic prospects. These generally do not end unless there is death, remarriage, etc. (see below).

ii) Temporary, short-term “rehabilitative” award—a court will consider the factors below to see if a party should be awarded alimony. This is usually awarded if someone just needs enough to get back on their feet.
(1) Ex.: A temporary spousal support award is more appropriate than a permanent award when the wife can still acquire the skills necessary to reenter the workforce, even if she has been out of the workforce for a couple years. A permanent spousal award is generally awarded when a spouse does not have the resources or ability to be self-sustaining.

iii) Lump sum award—this is a lump sum of money that is fixed and final (it may not be
modified even if paid in installments).

Question 2

1) Award of alimony
b) Exact approaches to alimony vary from state to state.

Answer 2

i) Almost all states require the trial court to consider:
(1) the parties’ financial resources and needs,
(2) marital contributions, and
(3) marital duration.

ii) Some states also require a trial court to consider:
(1) spousal misconduct (i.e., an affair);
(2) one spouse’s support for the other’s education or training; and
(3) some states say that a spouse must show that she lacks capacity for self-support as a precondition to obtaining spousal maintenance. Under a standard like this (followed
by the UMDA, but not followed by most courts), a spouse asking for maintenance has
an extra burden.

Question 3

1) Award of alimony
c) The trial court has substantial discretion in choosing to award spousal support.

Answer 3

i) Ex.: If husband was injured and was unable to work at all five years before the divorce and the couple had a 15-year-long marriage, a court may find that given his need and the length of the marriage, he should be awarded alimony.

Question 4

2) Modification and termination of alimony
a) Modification permitted

Answer 4

i) Alimony awards are not final and may be modified if a court finds there has been a
substantial change in circumstances. This must be an unanticipated change in
circumstances.
(1) Ex.: If a husband knew that he would have to support his fiancée and her children (whom he was living with) at the time he signed a separation agreement, then later getting married to her does not constitute a change in circumstances. This is an anticipated change in circumstances.
(2) Ex.: A wife’s unmarried cohabitation may constitute a change in circumstances if it affected the economic status of the recipient.

Question 5

b) Termination of alimony

Answer 5

i) Spousal maintenance usually terminates:
(1) upon death of either spouse,

(2) after a specified time has lapsed, or

(3) if there is re-marriage of the spouse receiving alimony.
(a) What if a spouse’s remarriage is annulled? There are two approaches:
(i) No-revival approach even if marriage is annulled. If the marriage is later annulled, there is an argument for reinstatement of the alimony obligation (since the marriage
never existed). However, most states deny petitions for alimony after an annulled marriage because the payor has an interest in certainty as to the termination of his obligation.

(ii) Equitable approach: some states say if equities strongly favor the alimony recipient, reinstatement will occur.
1. Ex.: In one state, a woman was abducted and physically coerced into the second marriage. The court held that proof of an involuntary marriage is enough to support
reinstatement of an alimony award.

(4) In some states, cohabitation will reduce or terminate alimony.