One of the most common questions we get asked during a divorce is regarding
alimony. Does Indiana have it? What about spousal support? Will I have
to pay either to my ex? The short answer: no. While Indiana does not require
parties to pay alimony or spousal support, Indiana
does recognize what is known as spousal maintenance.
Spousal maintenance may be awarded in a divorce or legal separation, but
under limited circumstances. The physical or mental incapacitation of
a spouse, the physical or mental incapacitation of the parties’
child, or what Indiana coins “rehabilitative” maintenance
are all circumstances in which a court may award spousal maintenance.
Of course, a spouse can always agree to voluntary pay another spouse maintenance
or alimony, but let’s take a closer look at the statutory circumstances
that a court may order maintenance.
If a spouse’s
mental or physical incapacitation affects their ability to support himself or herself, a court may order
the other spouse to pay maintenance. The courts can take in to account
the disabled spouse’s ability to earn income as well as the other
spouse’s ability to provide for maintenance. A key take away from
this provision of the statute is that the court
may find maintenance necessary, which means a judge may use his discretion
when determining whether to award maintenance.
If the parties are the
parents of a child who is physically or mentally incapacitated, the court
may find an award of maintenance appropriate. This depends on a few things,
one of the most important being whether the child’s incapacitation
requires the spouse needing maintenance to forego employment. Another
factor the court will consider is whether the parties have assets or marital
property available to them that would allow them to provide for the spouse
and the child’s needs. It’s important to note here that a
court has complete discretion to determine what they deem appropriate
in terms of the amount and length of maintenance that is necessary.
Courts can award what is known as
rehabilitative maintenance, which is the most common of the three types of maintenance awarded in
a divorce, if the spouse requesting rehabilitative maintenance lacks an
ability to support himself or herself due to lack of education or training.
In these cases, courts look at several factors, some being the education
level, training and employment experience of each party both at the time
of marriage and at the time of divorce, the earning capacity of each party,
the extent to which a spouse sacrificed education and/or employment because
of homemaking or child-care responsibilities, and the time and expense
necessary for the spouse to find appropriate employment. While a court’s
decision to award rehabilitative maintenance is discretionary, the maximum
length of time this type of maintenance can be awarded is 3 years.
What happens if you’re ordered to pay spousal maintenance and then
you lose your job? The statute does allow for modification or revocation
of an award of spousal maintenance, however the circumstances are, again,
limited. Like the laws surrounding modification of a child custody or
support order, a court can modify a spousal maintenance order under 2
different circumstances. If you can prove there’s been a substantial
and continuing change in circumstances that make the current order unreasonable,
you’ll have a good argument to modify. The second route to getting
a modification is a two-prong test that’s less straightforward.
If you can prove you’ve been ordered to pay an amount in child support
that differs by more than 20% of what you should be paying under the Indiana
Child Support Guidelines and that order was at least 12 months prior,
you may be in luck.
As you can see, the parameters surrounding spousal maintenance are limited.
If you have questions about spousal maintenance, divorce, or any other
family law matter, the attorneys at
Hollingsworth & Zivitz, P.C. have the experience, the understanding, and the compassion to assist with
your family law needs. If you have questions or concerns please contact
our firm at
317.DIVORCE or visit our website at
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