When a divorce is obtained in Kansas, one spouse may be required by the court to pay the other spouse financial support for a defined period of time. This support is called spousal maintenance, more commonly known as alimony. In Kansas, the two terms are legally indistinguishable.
Spousal maintenance is similar to child support, in that it is court ordered and one spouse is required to make monthly financial payments to the other spouse. Aside from that, the two are vastly different. This is mainly because spousal maintenance is meant to support the financial needs of an ex-spouse, rather than a child. The purpose of spousal maintenance is to have one spouse help the other spouse transition into a lifestyle living on their own after the divorce or annulment. The primary income earner during the marriage is typically the spouse that will make the maintenance payments.
What Determines the Amount of Maintenance?
The Kansas statutes pertaining to maintenance are vaguer 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, there exist a number of 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 individual 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 help determine the amount of maintenance. These guidelines are not required, but judges may use them as suggestions if they deem appropriate. This means that the court may ignore the guidelines altogether or grant a higher or lower maintenance award. Typically, courts are given a wide degree of deference when determining a maintenance award. For this reason, and others, maintenance awards can be difficult to appeal to a higher court.
Is Maintenance Always Awarded?
Maintenance is not always 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 not necessary or warranted. This is because maintenance is designed to ensure the non-primary earning spouse will be able to 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 greatly altered their lifestyle in such a way that transition to single life would be difficult. However, maintenance may be appropriate under certain circumstances, even if the spouses have similar paying jobs or earning potential or the marriage was short.
The spouses also may agree to forego any maintenance. This can be done through a prenuptial agreement or as an agreement in the context of the divorce. The court may require the spouses to explain the waiver of maintenance, particularly in cases where the awarding of maintenance seems appropriate.
How Is Maintenance Paid?
There are various ways that maintenance can be paid. 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 absent an agreement from both parties. 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 considered a rehabilitative payment, designed to allow a spouse to become financially independent immediately after a divorce. This may mean that a smaller award is required. An important consideration in this case would be the ability of the paying spouse 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 2018 or prior years, the maintenance may be deducted from the paying spouse’s gross income for the purpose of income tax reporting. On the other hand, the receiving spouse must report the maintenance received as income for tax purposes. Starting in 2019, the tax law regarding maintenance is changing under federal law. For any divorce finalized on or after January 1, 2019, maintenance will no longer be deductible for the paying spouse and will not be counted as income for the receiving spouse.
Can the Amount of Maintenance or Timing of Payments Be Changed?
Competent attorneys will be able to anticipate any surprises when agreeing to the mount and terms of maintenance, including a list of circumstances that allow for modifying 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, which allows for 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 is still allowed to interpret the meaning of the agreement.
A modification to the payment agreement may also be triggered during the life of the agreement. Two common examples of this instances 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, especially in instances where the income is inconsistent, such as fully-commissioned based salaries. A cost-of-living adjustment is adjusted periodically based upon inflation of the US Dollar.
There are many factors to consider when creating a maintenance payment plan fair for 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, it is important for a spouse to consult an experienced attorney to think critically about what each spouse desires from the maintenance agreement.