Let’s review the purpose of maintenance:  to rectify an economic imbalance in earning power and standard of living in light of the particular facts of each case, with the primary factors to be considered being the needs of one spouse and the other spouse’s ability to pay.  There are many factors, which I have discussed in prior posts, but really, in light of the economic recession, a main factor is the other spouse’s ability to pay.

The “stigma” with men asking for an order of maintenance has decreased, as more men have become primary caretakers of the home and children while the wife earned the income to support the family.  Another factor that has led to the increase of men receiving maintenance is due to the recession affecting predominately male industries such as construction and finance.    There are some women who believe that they should not have to pay maintenance unless there are kids involved.  Whatever the situation among the parties, it is very clear that it will be several more years before this new trend of “man-imony” will be commonly accepted.

If your spouse files for divorce and the Petition does not state that you are in need of maintenance from him/her, then you must file a Counter-Petition for divorce requesting the court award you maintenance.   I have discussed in a previous post the factors a court will look at when determining maintenance.

Suggestions for Maintenance Terms in your Kansas Settlement Agreement:

1. allow for modification based upon a change in circumstances
2. define change in circumstances (EX: 10% reduction in income; involuntary unemployment or demotion; injury, disability or a health issue that impairs the ability to maintain the current income
3. state if maintenance should be calculated based upon guidelines or some other measure
4. put an escalator clause in your agreement
5. termination – death, remarriage, cohabitation or after last payment is made
6. define cohabitation – you may want to provide for homosexual relationships, put your own definition on cohabitation, or use Kansas law’s definition to cohabitation
7. allow for parties to modify the agreement so long as the modification is in writing, signed by both parties, notarized and filed with the court
8. require modifications to be submitted to mediation prior to requesting court action

Maintenance Termination

Common maintenance termination language is:

Maintenance shall terminate upon the first to occur:

1. death of either party*
2. Wife’s remarriage
3. Wife’s cohabitation**
4. After the final payment is made

*In the event maintenance is substituted in the agreement for property as a property/maintenance award, if the intent is for the payment to survive death, this provision must be an express provision of the agreement.

**Great care should be taken when defining cohabitation.  Cohabitation in the courts eyes does not mean simply living with a person of the opposite sex.   The courts generally define cohabitation as living together as husband and wife.  This is not the common definition of cohabitation as used by laypersons.  You want to make sure and define cohabitation based upon your client’s expectations.

**Suggested cohabitation language: Cohabitation shall be defined as living with a non-relative adult male or female in a marriage-like relationship (for purposes of this section, a marriage-like relationship includes homosexual relationships), in a sexually intimate relationship for substantially consecutive periods of time in excess of thirty days, even if said relationship does not amount to marriage-like “cohabitation” under the common law of Kansas.

Maintenance Modification

Generally, the agreement will state that maintenance is contractual and non-modifiable.  If you want modification terms, you must specifically state the agreement regarding modification.  The modification of maintenance is usually contemplated based upon a change of circumstances of the paying party.

Change of Circumstances: Common language is as following: The Court shall have jurisdiction to modify or terminate the maintenance obligation in the event that paying party has a change in circumstances.  For purposes of this agreement, a “change in circumstances” shall mean paying parties income decreases by 10% or more either through involuntary unemployment or demotion and/or injury, disability or a health issue that impairs paying parties ability to maintain his/her current income.

This is a good case to familiarize yourself with as it has been eye opening to the court’s awarding maintenance.  As mentioned in a prior post, the factors the court may consider when determining maintenance are:

1. age of the parties
2. the parties’ present and prospective earning capabilities
3. length of marriage
4. property owned by parties
5. the parties’ needs
6. the time, source, and manner of acquisition of property
7. family ties and obligations
8. the parties’ overall financial situation

THE COURT DID NOT AWARD MAINTENANCE IN THIS CASE.  This case involves a couple that was married for 32 years, there was a two thousand dollar disparity in the parties’ net monthly income, husband had worked three or more jobs each year and wanted to work less but could not do so because of the household bills.  Wife was working part-time at the time of divorce, however, there was no evidence presented at trial showing she was not capable of working or obtaining full-time employment.  Wife was awarded one-half of the husband’s retirement accounts, and wife had received temporary maintenance pending the outcome of the divorce.

I believe this is a great example of the ability to pay.  Husband was working three jobs to his wife’s part-time job just to make ends meet.  The courts most likely did not require an awarding of maintenance simply because Wife was able to work full-time, received a large amount of money in the divorce settlement, and did receive assistance during the divorce.  The court most likely saw that Husband would be forced to continue to work three jobs to be able to pay his wife maintenence, and that woud be unjust.

Kansas Law Regarding Maintenance

K.S.A. 1998 Supp. 60-1610(b)(2) allows the court to award maintenance in an amount the court finds fair, just and equitable under all the circumstances. As mentioned previously, the trial court is not required to award any maintenance.

Factors the Kansas Court reviews in determining maintenance:

1. age of the parties
2. the parties’ present and prospective earning capacities
3. the length of the marriage
4. the property owned by the parties
5. the parties’ needs
6. the time, source and manner of acquisition of property
7. family ties and obligations, and
8. the parties’ overall financial situation

Additionally, the court may consider dissipation of assets, the retraining or education of the parties, the number of years a party has been absent from the job market and the parties skills and ability to re-enter the job market.

ALIMONY/MAINTENANCE

Alimony is taxable as income to the person receiving the payment and deductible for the person paying. If you are going to receive maintenance payments, you may want to talk to your accountant about paying estimated quarterly taxes so your liability at year end will be minimal.  Also, if you are paying maintenance payments, you want to keep track of your payments.

CHILD SUPPORT

Child support paid or received is not taxable. However, when calculating child support you should take into consideration who will take the dependency deduction of the children. Generally, the parent who has primary residential custody claims the children, however, the custodial parent can agree to complete a IRS form 8332 to allow the non-residential parent to claim the children as dependents on his/her taxes. Parents can agree to annually alternate the dependency deduction, each take one child, or agree to allow the parent who will receive the most benefit claim the dependency deduction.

FILING STATUS

Will you file as single or head of household? In order to qualify as head of household, you must meet the test in order to qualify.  You will need to confirm your qualifying status with your accoutant, however, here are some examples that will allow you to qualify as head of household: your divorce is final on the last day of the year, having children or other dependents who live with you, and paying more than half the cost of providing a home for dependents.