What Is Spousal Maintenance (Alimony) And How Does It Work In Kansas?
When a party in Kansas files for divorce or annulment, one spouse may be required to pay financial support to the other for a defined period of time. This support is formally denoted as Spousal Maintenance; although many individuals are more familiar with the term alimony, which is still used in certain states. The two terms are legally indistinguishable in Kansas, however.
Maintenance is similar to child support, in that both can be court ordered, and both require one party to make monthly financial payments to the other. There similarities stop there however. This is because maintenance, in contrast to child support, is meant to support the financial needs of an ex-spouse or partner, not a child. The purpose of maintenance, broadly defined, is to have one party, typically the primary income earner during the marriage, help the other transition into a lifestyle living on their own following the divorce or annulment.
What Determines The Amount Of Maintenance?
Kansas statute provides what many practitioners would call more vague or broad guidelines on maintenance. The relevant section of the statute is K.S.A. 23-2902 et seq. Specifically, this section of the statue states a court may enter any maintenance award the court finds to be “fair, just and equitable under all of the circumstances.”
Overtime, lower courts in Kansas have thankfully further refined this originally broad standard, and today a number of factors may be considered by a court in determining the appropriate amount to award. These factors may include, but do not necessarily have to be limited to: (1) age of the parties; (2) earning capacity—both present and future—of both parties; (3) how long the marriage lasted; (4) property owned by each individual spouse; (5) when, how, and from where the individual property was obtained; (6) needs of each spouse; (7) family obligations; and (8) the overall financial resources of each spouse.
Some jurisdictions, such as Johnson County, use guidelines in addition to existing case law to help determine the amount of maintenance. These guidelines are only suggestions, however, and judges are not required to abide by them. That is, the court may decide to depart from the guidelines by providing a higher or lower maintenance award, or they may choose to disregard the guidelines altogether if the circumstances limit their usefulness. Generally speaking, courts are also granted a wide degree of deference when deciding a maintenance award. It is for this reason, as well as others, that maintenance awards can often be difficult to appeal at a higher level.
Is Maintenance Always Awarded?
Courts do not always award maintenance. The decision to award maintenance is controlled by the a large variety of considerations, but often times can be boiled down to one party’s needs, and the other’s ability to pay. Thus, if the separating parties have equal or near equal earn potential, or even better equal or near equal paying jobs, maintenance may not be necessary, or warranted. This is because the purpose of maintenance is to ensure the non-primary earning spouse is able to maintain his or her lifestyle following a dissolution. Another common reason that maintenance may not be appropriate is in the case of very short marriages. In such a scenario, neither party is likely to have altered their lifestyles significantly in response to dependence upon their partner, thus making any transition period extremely limited. However, even in a short marriage or between spouses of similar earning capacities, maintenance may be appropriate depending on the existence of the other factors.
Additionally, parties may agree to forego maintenance. This can be a pre-dissolution agreement (a prenuptial agreement), or an agreement in the context of the dissolution. A court may require an explanation of why maintenance has been waived, however, particularly in a case where all factors suggest maintenance is appropriate.
How Is Maintenance Paid?
Maintenance can be paid in a variety of ways. A lump sum may be made at the time of dissolution or in various periodic installments over the time period agreed upon. However, an original maintenance award may not exceed 121 months (just over 10 years), absent agreement by both parties. For periodic payments, the paying spouse may have the amount deducted directly from his or her paycheck each month, or may be responsible for making the payment directly to the receiving spouse.
The timing and method of payment may also be considered in determining the total amount of a maintenance award. For example, a lump sum payment may be considered a “rehabilitative payment,” designed to allow a spouse to become financially independent immediately following the dissolution. This may mean a smaller total is required, as compared to several small, monthly payments over time. Again, the court will look to the same considerations used in determining amount to determine how maintenance should be paid. Of particular interest in this scenario would be the ability of the paying spouse to make a larger lump sum payment.
The tax consequences of maintenance also typically factor into whether each party would prefer to make and/or receive payments. For the paying spouse, maintenance can be directly deducted from their gross income for the purpose of income tax reporting. Conversely, the receiving spouse must report the maintenance he or she receives as income for tax purposes. Both spouses are likely to have a preference as to which year’s taxes these consequences must be applied to, and thus these preferences factor into the agreeability of a payment plan for each party. That said, for tax purposes, any maintenance received must be claimed in the same year received.
Can The Amount Of Maintenance Or Timing Of Payments Be Changed?
Competent legal counsel will anticipate surprises when agreeing to amount and terms of maintenance, and include a list of circumstances that allow for modifying the maintenance agreement. Common circumstances include the death of a party, remarriage or cohabitation by the receiving spouse, change of employment by either spouse, or illness by either spouse. It is possible to outline the precise circumstances that will allow modification of maintenance, including whether the amount can be modified by increasing or decreasing the amount. More commonly, however, the parties agree to a decretal clause, which allows for the amount to be decreased by court order, but never increased. When the dissolution agree provides for the ground of modification—including stating that modification is never permissible or only by mutual agreement—the court cannot modify the maintenance amount. A court may still be called upon to interpret the meaning of the agreement, though.
Modifications of payments may be triggered throughout the life of the agreement, as well. Two common examples are an escalation clause and a cost-of-living adjustment. An escalation clause modifies the amount of maintenance based upon the earnings of the paying spouse. This can be important when income is inconsistent, such as fully-commissioned based salaries. A cost-of-living adjustment functions much like cost-of-living raises used by many employers. The base amount is adjusted periodically based upon inflation of the US Dollar.
Many factors go into crafting a maintenance payment plan that is fair to both spouses. Further, the very nature of maintenance payments—having to provide a part of income to an ex-spouse—can be an emotionally-charged and contentious part of a dissolution proceeding. It is very important for a party, through competent legal counsel, to think creatively and critically about what each side wants out of the agreement. This can ensure one of the most controversial parts of an already challenging experience produces a favorable result.
If you are going through a divorce and need guidance look to an attorney that has experience with cases in the jurisdiction you intend to file the case. The attorneys at divorce and family law attorneys at Roth Davies, LLC help clients with family law cases in Johnson County, Kansas and some surrounding counties.
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