SPOUSAL SUPPORT AND ALIMONY
Couples usually enter a marriage with the intention of building a life together, for better or for worse. Nonetheless, more than 2,000 couples filed for divorce in Johnson County, Kansas, in the last year. When couples divorce, whatever they had built together is divided as they go their separate ways.
There are times when one spouse needs financial help to build a new life, and the other spouse is capable of providing it. Although it sounds simple, alimony can be very complicated and is often a highly contentious part of a divorce.
If you are considering filing for divorce, have already started the process, or have been served divorce papers, you may be wondering whether you can receive alimony and, if so, whether you will have to pay it. You have questions, and the team at Roth Davies LLC may have the answers you need. They have helped hundreds of clients in Overland Park and throughout Johnson County, Kansas, through their divorces and into the next chapter of their lives. Reach out today to schedule a consultation.
What is Alimony, Support, or Spousal Maintenance?
Alimony, spousal support, and spousal maintenance are different terms for the court-ordered payment one spouse pays to the other during the divorce process or after the divorce is finalized. Who pays alimony depends on need, income, and resources, not gender.
What Determines the Amount of Maintenance?
The Kansas statutes about maintenance are more vague than the child support guidelines. K.S.A. 23-2902 et seq. states the court may enter any maintenance award the court deems “fair, just and equitable under all of the circumstances.”
Over the history of the statutes, lower courts in Kansas have refined this broad standard, and today, several factors the court may consider when determining the appropriate amount of maintenance to award. These factors may include: (1) age of the parties, (2) present and future earning capacity of both parties, (3) how long the marriage lasted, (4) property owned by each spouse, (5) when, how, and from where the individual property was obtained, (6) the needs of each spouse, (7) family obligations, and (8) the overall financial resources of each spouse.
Some jurisdictions, such as Johnson County, use guidelines to determine maintenance amounts. These guidelines are not required, but judges may use them as suggestions if they deem them appropriate. This means that the court may ignore the guidelines altogether or grant a higher or lower maintenance award. Typically, courts are given broad deference when determining a maintenance award. For this reason, and others, maintenance awards can be difficult to appeal to a higher court.
How long does Alimony last?
In most cases, alimony is temporary. In fact, Kansas law prohibits the court from awarding maintenance for longer than 121 months. At that time, the need for support can be reviewed and additional support granted.
There are three types of alimony awarded in Kansas:
General support may be awarded when one spouse’s income is significantly higher than that of the other spouse.
Reimbursement support may be awarded to pay back a spouse who provided significant financial support to the household while the other spouse pursued an education.
Transition support may be awarded to a spouse who needs time to pursue education or training to qualify for employment that will provide adequate income following the divorce.
What are the factors for determining if you will get alimony?
A spouse must demonstrate the need for alimony, and the other spouse must have the financial ability to pay spousal maintenance while meeting their own financial obligations. Other factors the court may consider include:
The length of the marriage
The standard of living during the marriage
The contributions of each spouse during the marriage
The age and physical and mental health of each spouse
The need for further education or training for a spouse to become self-sufficient
Is Maintenance/Alimony consistently awarded?
Maintenance is not consistently awarded. The awarding of maintenance is controlled by a variety of considerations, but is generally tied down to one spouse’s needs and the other spouse’s ability to pay. Therefore, if the spouses have equal or near-equal-paying jobs or earning potential, maintenance is generally neither necessary nor warranted. This is because maintenance is intended to ensure that the non-primary-earning spouse can maintain his or her lifestyle after the divorce. Another common reason why maintenance may not be appropriate is when the marriage was very short. In that situation, neither spouse is likely to have significantly altered their lifestyle in a way that would make the transition to single life difficult. However, maintenance may be appropriate under certain circumstances, even if the spouses have similar jobs or earning potential, or if the marriage was short.
The spouses may also agree to forego maintenance. This can be done through a prenuptial agreement or as part of a divorce agreement. The court may require the spouses to explain the waiver of maintenance, particularly when the award of maintenance seems appropriate.
How is maintenance/alimony paid?
There are various ways to pay for maintenance. Maintenance may be paid as a lump sum at the time of divorce or in periodic installments over an agreed-upon time period. However, a maintenance award may not exceed 121 months unless both parties agree. For periodic payments, the paying spouse may either make the payments directly to the receiving spouse or have the amount deducted from his or her paycheck.
The timing and method of payment can also be factors when considering the amount of maintenance to award. A lump sum may be regarded as a rehabilitative payment, designed to enable a spouse to become financially independent immediately after a divorce. This may mean that a smaller award is required. An essential consideration in this case would be the paying spouse's ability to make a large lump-sum payment at the time of divorce.
The tax consequences of maintenance also generally factor into whether each spouse would prefer to make and/or receive payments. For a divorce finalized in 2023 or earlier, maintenance may be deducted from the paying spouse’s gross income for income tax reporting. On the other hand, the receiving spouse must report the maintenance received as income for tax purposes. Starting in 2024, federal law regarding maintenance is changing. For any divorce finalized on or after January 1, 2024, maintenance will no longer be deductible for the paying spouse and will not be counted as income for the receiving spouse.
Can Alimony orders be changed or modified?
The court may order that future alimony payments be modified or terminated under the circumstances outlined in the divorce decree. The 121-month rule still applies even when the alimony award is modified.
If the divorce decree provides for the court to review the alimony award for potential modifications to maintenance, and the spouse receiving alimony files a motion for modification before the expiration of the original maintenance period, the court may hold a hearing on the motion to decide whether the alimony should be reinstated.
Can the Amount of Maintenance or Timing of Payments Be Changed?
Competent attorneys will be able to anticipate any surprises when agreeing on the amount and terms of maintenance, including a list of circumstances that allow modification of the maintenance agreement. This list includes the death of either spouse, remarriage or cohabitation by the receiving spouse, change of employment by either spouse, or an illness by either spouse. It is possible to dictate which circumstances will allow a modification of maintenance, including whether the amount can be increased or decreased. However, spouses typically agree to a decretal clause that allows the amount to be decreased, but never increased, by court order. When the divorce agreement provides for modification, the court cannot modify the maintenance amount. Nevertheless, a court may still interpret the agreement's meaning.
A modification to the payment agreement may also be triggered during the life of the contract. Two common examples of these instances are an escalation clause and a cost-of-living adjustment. An escalation clause modifies the maintenance amount based on the paying spouse's earnings, especially when income is inconsistent, such as with fully commission-based salaries. A cost-of-living adjustment is periodically adjusted in line with inflation in the U.S. dollar.
There are many factors to consider when creating a maintenance payment plan that is fair to both spouses. In addition, the very idea of maintenance payments may be an emotionally-charged and tension-filled aspect of the divorce proceeding. For this reason, a spouse needs to consult an experienced attorney to consider what each spouse desires from the maintenance agreement carefully.
How does Alimony affect taxes?
In divorce cases settled after January 1, 2019, the payer is no longer able to deduct alimony payments from their income taxes, and the recipient is no longer required to report the spousal support as income. Since this change affects each spouse’s income and tax burden, it is wise to discuss the award income and tax implications with an attorney.
SPOUSAL SUPPORT & ALIMONY ATTORNEYS SERVING OVERLAND PARK, KANSAS
Divorce is never easy, but it helps if you have a family law attorney with the knowledge to answer your questions and guide you through the process. If you are seeking answers to your questions, call Roth Davies LLC today. They help clients like you in Overland Park and throughout Johnson County, Kansas, navigate divorce and other life changes.