Indiana Agreements - Modifying Spousal Maintenance

Indiana has no alimony. What we have is spousal maintenance - and the General Assembly has limited when the courts can grant spousal maintenance (see my article here for more of an explanation). However, the parties can agree to what the courts cannot grant. What then if the parties agree to something - such as maintenance - which needs modification later, then what can the courts do?

That question gets answered by the Indiana Supreme Court in Voigt v. Voigt, 670 NE 2d 1271 (1996).

In addition to this legitimate concern for vexatious litigation, we believe modification of maintenance agreements approaches the limits of a court's statutory authority. As we have explained, the legislature intended to place severe restrictions on the power of courts to impose maintenance obligations. We have also noted that courts should exercise their authority to review settlement agreements with great restraint. Finally, it is obvious that a disgruntled former spouse should not be permitted to use the modification process to wage a collateral attack on a maintenance obligation. Farthing, 178 Ind. App. at 341-43, 382 N.E.2d at 945-46.

***

We think these cases, though not directly on point, establish a general principle applicable in the present case. Where a court 1280 had no authority to impose the kind of maintenance award that the parties forged in a settlement agreement, the court cannot subsequently modify the maintenance obligation without the consent of the parties. In essence, the parties must agree to amend their settlement agreement, because the sole authority for the maintenance obligation originally derived from their mutual assent.[13] In approving or rejecting any submitted modification agreement, a court should apply the same standard it would use in evaluating an initial settlement agreement.

We now hold that a court has no statutory authority to grant a contested petition to modify a maintenance obligation that arises under a previously approved settlement agreement if the court alone could not initially have imposed an identical obligation had the parties never voluntarily agreed to it. We therefore disapprove Pfenninger.

Notice the Indiana Supreme Court left open the issue of a trial court modifying a mainantence agreement that could have been imposed by the trial court. The Indiana Supreme Court tackled (kind of) that issue in Stuart v. Phillips, 734 NE 2d 1046 (2000):

The Court of Appeals reversed. Stuart v. Phillips, 723 N.E.2d 463 (Ind.Ct.App. 2000). The Court of Appeals concluded "that by expressly reserving the question of whether a court may modify a settlement agreement grounded in incapacity, 1047 caregiving, or rehabilitation," we had "created an exception to the rule that courts may not modify settlement agreements incorporated into the final decree." Stuart, 723 N.E.2d at 467. From this, the Court of Appeals held that "if the provision falls within the narrow parameters of maintenance orders that a court may impose without agreement of the parties, then the agreement may be subject to modification under the exception created by our supreme court in Voigt." Id. (footnote omitted).

However, Voigt expressly left open the question whether the court may take this action. We therefore disagree with the Court of Appeals that Voigt resolves the issue.

While this case pended on transfer, the parties filed a joint motion to dismiss the appeal, stating that their controversy had been settled and that Wife had filed a release of judgment in Bartholomew Superior Court. Because the parties have settled their dispute, it is not necessary to decide the question reserved in Voigt, and the question remains open.

More instructive may be Zan v. Zan, 820 NE 2d 1284 (2005):

Here, Joyce and Lawrence agreed that Lawrence would make rehabilitative maintenance payments to Joyce "due to the fact that [she had] not worked continuously throughout the marriage and needs assistance in obtaining an education to better employment opportunities." Appellant's App. p. 49. The trial court would have had the authority, pursuant to Indiana Code section 31-15-7-2(3), to order Lawrence to make such rehabilitative maintenance payments without the agreement of the parties.

Although our supreme court has not squarely decided the issue presented today, it is our view that the trial court may modify the Agreement under these circumstances. To hold otherwise may circumvent the parties' ability or desire to bargain independently without court intervention. Put another way, a party may be loathe to enter into an agreement such as the one here, knowing that a court could not intervene in the event of changed circumstances.

Even more compelling, when the Agreement is examined as a whole, it is apparent that the purpose of the rehabilitative maintenance provision was to enable Joyce to attend an educational or vocational training 1289 program. Specifically, the Agreement requires Lawrence to make rehabilitative maintenance payments for a full three years "so long as [he] remains employed in his current capacity with the FAA." Appellant's App. p. 49. While Joyce concludes from this clause that the only way, aside from the passage of three years, that Lawrence's obligation may be modified is if he loses his job with the FAA, our review of the Agreement leads us to disagree. A subsequent clause goes on to note that Lawrence "is agreeable to paying rehabilitative maintenance due to the fact that [Joyce] has not worked continuously throughout the marriage and needs assistance in obtaining an education to better employment opportunities." Id. It is apparent from this clause that the parties intended that the rehabilitative maintenance would assist Joyce "in obtaining an education" so that she could seek better employment opportunities. The evidence presented at the hearing showed that rather than obtaining an education, Joyce has collected over $18,000 from Lawrence and has instead apparently used it as a means of supporting herself. In our view, such was not the intent and spirit of the Agreement. Thus, under these circumstances, the trial court properly modified Lawrence's maintenance obligation

.

The points to take away from this:

1. Parties can agree to a spousal maintenance that the courts could not grant.
2. Do not expect the courts to modify an agreement that allows more than the courts could grant if circumstances change except for very narrow circumstances.
3. Be very, very careful drafting any maintenance agreements.
4. Because of #3, get a lawyer to draft or review any proposed maintenance agreements.
   

Indiana Family Law Resources

I am not sure how many readers take a look at the sidebar because some seem to miss a collection of links I have under the heading of Indiana Family Law Resources.

When I created this list, my thought was to create a mini-portal for the most important sources for Indiana family. That does not work very well if no one notices that the information is here.

Nor is it really much use to those using RSS feeds or who have an e-mail subscription.

Every parent should bookmark the first three links.

• Indiana's Parenting Time Guidelines
• Indiana Child Support Guidelines
• Indiana's Online Child Support Calculator
• Indiana Trial Courts and Clerks
• Indiana's Family Law and Juvenile Law Code
• Indiana Rules of Trial Procedure
• Indiana Rules of Appellate Procedure

If you are looking for a specific trial court, then go to Indiana Trial Court and Clerks. This page is maintained by our Indiana Supreme Court. Find the county and this will take you a page showing contact information for each court in a county, the judge's name, a map to the courthouse, and a link to the county's local rules.

Indiana's Family Law and Juvenile Code takes you to Title 31 of the Indiana Code. Here you will find the statutes on marriage, annulment, divorce, parenting time, custody, paternity. child support, and more.

The Indiana Rules of Trial Procedure contains all the rules needed in handling a case procedurally (as opposed to the substance found i the Guidelines and statutes). Not all apply to family law - such as anything dealing with jury trials - but these need knowing for trying a case and they apply in all counties.

Indiana Rules of Evidence are those rules about what is relevant evidence and how we get that evidence before a court. Don't follow these and you do not get your case made.

Indiana Rules of Appellate Procedure are the rules on how to create and handle an appeal in Indiana's Court of Appeals and Supreme Court.

Well, I hope this helps. Bookmark the specific sites or come back here - these will be here.

New Divorce and Family Law Blogs

Bankruptcy and divorce, two subjects existing closer than will please many is the subject of The Interplay Between Bankruptcy and Divorce Law in Virginia. Not exactly a zinger for a blog name but spot on accurate for its content.  The posts concentrate on Viriginia, naturally.  Which does not mean it lacks value for Indiana - just check its bankruptcy reports against our Seventh Circuit.  (I do not expect many differences but what differences exists will probably be significant.)

I found interesting what differences exist between Indiana and Virginia in its Top Ten Costly Divorce Mistakes to Avoid During a Recession (as well as good points for Hoosiers, too):

1. Adultery may eliminate spousal support in Virginia.

Even if our temporary maintenance equals their spousal support, there is no support for this in our statute.  On the other hand, I think our economy and the closeness of income between parties makes maintenance (temporary or otherwise) difficult to get.  For more on Indiana maintenance go my archived articles.

2. Be aware of formulas and guidelines for determining support in Virginia: child support guidelines are the presumptively correct starting point for support; pendente lite spousal support: w/child – 28/58%, w/o child – 30/50%.

This is true for Indiana, too.  Diverting from our Child Support Guidelines means having a very good reason.

3. Alimony: request it, reserve it, or lose it.

Not got alimony in Indiana but maintenance we do have.  Request a provisional hearing and ask for temporary maintenance and save permanent maintenance for the Final Hearing.  But go back and see my comment to 1.

4. You have 2 years to file for an annulment and you may lose your right by cohabitation after knowledge of the facts.

Looks like annulment may be as hard to get in Virginia as in Indiana.  Cohabitation is also a defense in Indiana.  This did point out to me that there is no explicit statute of limitations for annulment in Indiana under the Indiana Code (and certainly none mentioned in any of the available cases).  I suppose that our general statute of limitations on fraud may apply.  For more about annulment in Indiana, follow this link to the annulment articles archive.

5. Do not delay the filing of a motion to modify support upon a material change in circumstances.

Damned good advice.  This applies everywhere.  Even when there is not a recession.  Do not say that you cannot afford a lawyer - find one that will unbundle services or one that takes payments.  Getting behind in your child support means contempt, which can mean jail.  You figure out which is cheaper - a lawyer or jail time.  For my articles on contempt, go here.  For my atricles on attorney fees go here, and for child support articles follow this link.

6. Judges are hostile to the concept of separating under the same roof in Virginia.

Never seen this problem in Indiana.  Especially locally with our post- General Motors economy, judges can have no problem with two people living together who do not want to be married any longer.

7. A suit for a divorce from bed and board can be filed immediately in the Circuit Court. You may be able to obtain pendente lite relief for temporary support, attorney’s fees and costs, protective orders, temporary custody and child support, exclusive use of the marital residence, or a freeze on assets.

Take out the "from bed and board" and add after Circuit Court "or Superior Court", and  take out "protective orders" and , and you have a good description of what Indiana courts can do.  Protective orders need filing separately here.  I have an arichive of my aticles on our courts and an archive on protective orders.  I put in these links so that more specific information is can be gotten to, please use them to get at this information.

8. Consult with your tax advisor concerning the tax consequences of spousal support, allocation of the dependency exemption, exclusion of gain from sale of marital residence, etc.

Another good idea that applies here as well as Indiana.

9. Be careful about leaving the marital residence without a separation agreement.

I do not think this is as a lethal in Indiana as it appears to be for Virginians.   That any agreement is a good thing, I will not deny.

10. Consider the possibility in your agreement that one spouse may file for bankruptcy relief.

Always, always consider the fact of bankruptcy.   Maybe it is all my years when I did practice consumer bankrutpcy law but I am a bit surprised by lawyers who do not think of bankruptcy.

McLean County Divorce comes from Illinois lawyer, Jon D. McLaughlin, with me having a bit of concern over the two months from his last post.  However, Hoosiers still might learn from his Change of Child Custody and Simple Divorces (we have a better procedure here). I have some quibbles with his Suggestions for Fathers going through a divorce but on the whole, it is a good collection of suggestions for Indiana fathers.  Let us hope that Mr. Mclaughlin continues to publish his blog.

Okay, it is Canadian but Collaborative Practice Canada does a more than adequate job of promoting colllaborative law.  I cannot say that anything specifically applies to Indiana but that has is not quite the point either.  If the general public wants a less adversarial approach to family law cases, then the general public needs to know that an alternative not only exists but why it is preferable.  That said, give a look at Collaborative Law - in the interests of families and children..


 Another family law blog, this time from California's Orange County.  Hence the name being Orange County Family Lawyer Blog. It looks fairly new but the articles are clearly written and succinct.  Still fairly new and may interest those who want to contrast Indiana's courts with another state.

Delaware County: Modifying Custody or Spousal Maintenance or Child Support in Delaware County

Here lies some problems of local rules. Pay attention to this Delaware County Local Rule for Domestic Relation Cases:

A. Petition for Modification. No Petition for Modification of Custody, Child Support, or Spousal Maintenance will be entertained unless a full year has elapsed from the date of the last decision of the court pertaining to custody, support or maintenance, except on showing by a verified petition requesting a hearing and setting forth in detail that an extreme emergency exists.

I have never seen any of the Muncie lawyers raise this in any case of mine. On the other hand, I am not sure that any case of mine violated this rule. Maybe it is used often and maybe it is forgotten. Still, I see some problems with this rule and one oddity.

First, extreme emergency goes undefined. Indiana's statutes neither define extreme emergency nor contain this requirement.

Which leads to the next set of problems. Indiana statutes set out when a custody or child support order may be modified by a court.

Here is the statute setting out the grounds for a custody modification:

IC 31-17-2-21
Modification of child custody order
Sec. 21. (a) The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter.
(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.
(c) The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 and, if applicable, section 8.5 of this chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.9.

I think an extreme emergency does not necessarily equal a substantial change. Therefore, the local rule ought not impede the filing of a custody modification. If it were, then budget for an appeal to the Indiana Court of Appeals.

About child support or maintenance modifications, the following statute creates the same problem for the Delaware County Local Rule:

IC 31-16-8-1
Modification or revocation of child support order or maintenance order

Sec. 1. (a) Provisions of an order with respect to child support or an order for maintenance (ordered under IC 31-16-7-1 or IC 31-1-11.5-9(c) before their repeal) may be modified or revoked.
(b) Except as provided in section 2 of this chapter, modification may be made only:

(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:

(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

(c) Modification under this section is subject to IC 31-25-4-17(a)(6).
As added by P.L.1-1997, SEC.8. Amended by P.L.103-2007, SEC.19.

Again, I disagree that the Local Rule can impede a support modification unless there is no showing of a substantial and continuous change. I also do not think that an extreme emergency equates to a substantial and continuous change - the former seems far more severe than the latter.

As I wrote above, I have not had to deal with any case where these rules came up but as I also wrote in Local Rules: "Until the Internet came along, I think they were mostly gotcha tools for out of county attorneys." This Rule has all the appearances of a "gotcha" for the unwary attorney or pro se party. Not the best idea I have seen out of Muncie.

Maintenance and Depression

Although Indiana does not allow for alimony, I took an interest in What some RI Divorce Lawyers do that Judges may buy into! from Rhode Island Divorce Tips for several reasons.

Initially my attraction rested on the idea that there are attorneys who foment litigation there as we have here. Not the most pleasant thing for attorneys to talk about but there are those who will make mountains out of molehills and have fee bills to match those mountains.

I kept reading for another reason. It seems that some Rhode Island attorneys use the depression caused by a divorce to seek alimony. The alimony being sought appears to correspond to Indiana's rehabilitative maintenance:

If the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected, the court may find that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court.

IC 31-15-7-2.

I am left wondering what to do when faced with the sort of case as the one in Rhode Island. I think most people are going to be depressed by a contested divorce. I suspect every judge I know of will think the same things I do. There needs to be evidence of a medical/psychological condition and not a mere bad day. There had better be a condition that puts the depressed party into the type of care that they cannot go to work.

I never found judges willing to award maintenance. I think a mere claim of depression will make them more willing to aware maintenance.

If you need an Indiana lawyer for your divorce case, give me a call.

Indiana Spousal Support 101

Indiana has no alimony law. The Court has discretion to award maintenance to a spouse, however. There are numerous factors the Court will consider in awarding spousal maintenance. If the spouse is physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected, the Court may find maintenance necessary during the period of incapacitation. Additionally, if the Court finds that a spouse lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse’s needs, and the spouse is the custodian of a child whose physical or mental impairment requires the spouse to forego employment, likewise, the Court has discretion to order maintenance.

The Court may also order rehabilitative maintenance to a spouse to allow that spouse time to get back on his or her feet. In determining whether to award rehabilitative maintenance, the Court must consider the educational level of each spouse at the time of the marriage and at the time the divorce action is commenced, whether interruption in the education, training, or employment of a spouse seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, the earning capacity of each spouse, and the time and expense necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment. Any rehabilitative maintenance ordered by the Court cannot exceed three years in length.

You might also want to read my Alimony FAQ. If you need an Indiana lawyer for your divorce case, give me a call.

Should Indiana Have Alimony?

Indiana has not had alimony as part of its divorce statutes for about three decades. While we do have maintenance, that is not the same thing.

During one of the recurring bouts of decrying the divorce rate and offering suggestions of how to make divorce harder, I thought bringing back alimony might offer some help. Whatever thoughts I had about this idea died while reading Massachusetts Alimony: Time for Reform? from Massachusetts Divorce & Family Law Blog:

"The crux of the problem is there is no agreement on a formula, or a uniform set of guidelines even, for alimony, and the law of alimony is essentially the same long list of statutory factors that are supposed to be taken into account in determining the division of assets upon divorce (M.G.L. ch.208, section 34). See the Massachusetts divorce statute here."

How does an Indiana trial court decide to grant spousal maintenance?

I cannot answer that question definitively. The law possesses a tantalizingly simple air: "The trial court may make an award of spousal maintenance upon the finding that a spouse’s self-supporting ability is materially impaired. Bizik v. Bizik, 753 N.E.2d 762, 768 (Ind. Ct. App. 2001) ."

Unable to give you a definitive answer, I can give you an example courtesy of the Indiana Court of Appeals' decision in FITCHPATRICK v. FITCHPATRICK (NPF opinion; October 24, 2007) at page 3-5:

2. The parties were married on March 31, 1993. There has been an irretrievable breakdown of the marriage exists [sic], and that more than sixty (60) days has elapsed since the filing of the Petition for Dissolution of Marriage on April 17, 2003.
….
4. There are no children born to the marriage for which an order is required.

5. The Wife is disabled within the meaning of the Dissolution of Marriage Act and this Court entered a final order on 10/19/04 finding and ordering that the Wife was entitled to permanent maintenance of $150.00 per week until further order of the Court which findings and order are incorporated herein.
….
8. The Husband has a vested pension benefit with Daimler Chrysler with 30 years of service as of July 2006, 10 years of which was acquired through the joint efforts of the parties, March 31, 1993 to April 17, 2003.
9. CATHY A. FITCHPATRICK has been determined by the federal government, Social Security Administration to be disabled and unable to engage in substantial work activity and currently draws the sum of $1202.00 per month less $66.60 for Medicare Premiums for a net of $1135.00 per month SSDI benefits for her disability.
10. The Court ordered CATHY A. FITCHPATRICK examined by the physician of the Respondent’s choice, Donald L. Roegner, M.D. and his report has been filed with the Court. Pursuant to the findings of Dr. Roegner, CATHY A. FITCHPATRICK “is in no position, despite multiple medications and regular treatment to be expected to work, even in the most mundane of jobs such as clerking in a convenience store, etc.”
11. The Husband is employed at Daimler Chrysler earning in excess of $26.00 per hour, approximately $1180.00 gross wages per week for a 40 hour work week.
12. The Husband has adopted M-Plan as the family health care plan and the Wife’s $1400.00 per month medications current cost $10.00 co-pay, $50.00 per month.
13. The Wife’s Medicare prescription plan would pay approximately 2 months of the $1400.00 monthly prescriptions costs of the Wife without M-Plan.
14. The Wife’s monthly prescriptions costs of the Wife without M-Plan would exceed her monthly income.
Conclusions of Law
A. The marriage is irretrievably broken and should be dissolved.
….
G. There has been no change of circumstances since the entry of the 10-19-2004 order of permanent maintenance.
H. CATHY A. FITCHPATRICK is entitled to permanent maintenance pursuant to I.C. 31-15-7-2 in that she is physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected.
I. The current order of $150.00 weekly maintenance is appropriate under the circumstances in that there has been no material change of circumstances since 10-19-04 justifying modification of the weekly order entered “by agreement” and may not be modified. Haville v. Haville, 787 N.E.2d 410, 417 (Ind. Ct. App. 2003), Voigt v. Voigt, 670 N.E.2d 1271, 1277 (Ind. 1996).
J. The (court) denies the Wife’s request to have the Husband pay her COBRA Insurance and maintain her on his insurance. The Court finds that the Husband is Guardian for four (4) children and such requirement would create an unreasonable burden upon him.

New Indiana Court of Appeals decision - Spousal maintenace modified

In David J. Mitchell v. Alicia Mitchell n/k/a Alicia Zamarron (PDF format; Indiana Court of Appeals, 10/23/07) both sides appealed about how the trial court modified the husband's spousal maintenance payments.

Here are the facts on the spousal maintenance:

...The trial court ordered David to pay $400 per month in permanent spousal maintenance and pay.. approximately $315 per month to maintain insurance coverage for Alicia through the COBRA system.

Later that year David began receiving statements from his insurance company that referenced Alicia’s status as a Medicare recipient. Until that point, he was unaware that Alicia had sought out or been granted Medicare benefits. Alicia also applied for and began receiving $650 in monthly social security disability benefits without David’s knowledge. This amount eventually was increased to $703 per month. In addition to the monthly payments, the Social Security Administration issued a $21,000 lump sum award to Alicia. She also received a $55,000 settlement based on a personal injury action.

The law on the subject:

Indiana Code Section 31-15-7-2(a) controls spousal maintenance and provides: “If the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected, the court may find that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court.” A modification to the maintenance provisions may be ordered only “upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” Ind. Code. § 31-15-7-3.

On these facts and the law, the Court of Appeals upheld the modification (pages 4-5).

The Court of Appeals denied husband's argument that he should pay no spousal maintenance as the former wife was receiving Social Security Benefits. "Presumably, the legislature was aware that incapacitated spouses could be eligible for additional governmental aid and did not provide a statute that automatically excused or eliminated spousal maintenance in that circumstance." (page 7).

For other articles posted on this blog about maintenance, click here.

Alimony FAQ

No, Indiana does not have alimony. Yes, Indiana has maintenance.

What is the difference?

As I understand alimony, it is support paid to the former spouse usually until such time as the former spouse remarries. Here is the definition on Law.com's legal dictionary.

How does a person get maintenance?

First, there is temporary maintenance - which lasts till the end of the divorce - and post-dissolution maintenance.

IC 31-15-7-2 defines post-dissolution maintenance for the Indiana courts. Indiana law provides for maintenance in three circumstances:

1. The spouse has a physical or mental incapacity materially affecting the ability of the incapacitated spouse to support himself or herself.
2. The spouse is given custody of a child with such a physical or mental incapacity that the spouse cannot work and the spouse lacks sufficient property to support herself.
   
3. Rehabilitative maintenance is for a spouse who gave up educational opportunity for homemaking or child care and wants to go back to school.
   

How long does maintenance last?

1. Where the spouse has a physical or mental incapacity, till that incapacity ends.
2. Where the child has the incapacity, "for a period of time that the court considers appropriate."
3. For rehabilitative maintenance, for as long as appropriate but "not to exceed three (3) years from the date of the final decree."
4. One can also modify an Order for post-dissolution maintenance
   
   

Can I modify maintenance after the divorce?

Yes, IC 31-15-7-3 sets out the law but the summary is as follows:

1. Circumstances have changed so substantially and continuously as to make the original order unreasonable.
2. There is also a child support order that has not been modified in the past 12 months and now differs by 20% from the amount in the child support guidelines.

Can my spouse and I agree to alimony?

Yes. The court cannot order it which means the State of Indiana cannot impose alimony but the parties can agree to alimony.

What if I agree to pay alimony?

Alimony was once part of the property division. Under the law of property division, there is no modification of alimony. If your spouse wants you to pay alimony, get the advice of a lawyer before signing any agreement.

Ex-wife tries to kill ex husband but keeps her maintenance

Sometimes these things cannot be made up. The Missouri Supreme Court ruled that non-modification clause in a divorce decree meant just what it said - even if one party tried to get the other killed. So the ex-wife continues to collect her $2,425.00 per month. Here is my favorite line from the opinion:

Killing Joseph might have resulted in the termination of Ida's ability to collect maintenance, but her alleged acts do not establish a clear and unequivocal attempt to relinquish her contractual right to maintenance so long as Joseph is living.

I got to admit that I got a few chuckles out of this. No wonder people wonder about us attorneys. Thanks to The Family Law Prof blog for posting on this.

I must say that I think that a similar result would probably occur here in Indiana. A voluntary maintenance agreement can only be modified by joint agreement (See In Re Marriage of Snow which is in PDF format). I do not see a former spouse who acted liked the Missouri ex-wife would agreement to a modification.

Maintenance

Indiana does not allow for alimony. Indiana does allow for maintenance. Maintenance is the payment of money to the former spouse for their support.

Temporary maintenance is only allowed from the provisional hearing to the Final Hearing. Here the purpose is to keep the other spouse afloat during the transition out of marriage and two incomes. The spouse seeking maintenance must not be able to support themselves. My experience is that courts are not likely to grant maintenance and when they do order it, the spouse paying maintenance is ordered to pay bills rather than pay cash to the other spouse.

Post-divorce maintenance is of three varieties and the statute defines them so that they are available only in specific cases. First, one spouse is disabled and incapable of supporting themselves. Second, one spouse has custody of a child who is so disabled that the spouse must give up work to take care of the child. The last type of maintenance is called rehabilitative maintenance and the statute sets out the criteria for rehabilitative maintenance:

(A) the educational level of each spouse at the time of marriage and at the time the action is commenced;
(B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both;
(C) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and
(D) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment....

No maintenance is permanent. Rehabilitative maintenance lasts only three years. Where the court gives maintenance because of the spouse’s disability when the spouse can support themselves is the end of the maintenance. When a child’s disability is the reason for the maintenance order, the court orders the maintenance for what it considers to be an appropriate amount of time.