Spousal maintenance is an emotionally-charged issue in divorce. I’ve handled many cases requiring a trial because the parties could not agree on whether alimony was appropriate, or the amount and duration of spousal maintenance. Maintenance is tricky because, unlike child support, there are no formal guidelines or formulas to assist divorce litigants in determining what is reasonable under their circumstances.
If left to the judge, the court has limited options. The result can either be: (1) no maintenance at all; (2) temporary maintenance; or (3) permanent maintenance. Maintenance cases tend to involve those part of a longer marriage in which one party has made a career sacrifice for the sake of the family, or the other party. An income disparity is necessary in order for the court to find that someone has the ability to pay spousal maintenance.
The terms “temporary” and “permanent” maintenance can be deceiving.
“Permanent” maintenance does not mean “forever.” Rather, it denotes a maintenance award that is paid until there is a substantial change in the parties’ circumstances – usually remarriage (of the recipient), good faith retirement (of the payor) or loss of employment. This open-ended approach leaves most obligors feeling uneasy, given the unpredictability of the future. Recipients also feel exposed, as their ex could lose his or her position of employment.
“Temporary” maintenance does not necessarily mean “time certain.” The recipient of a temporary spousal maintenance award maintains the ability to return to court near the end of the award to ask for more. Again, indigestion may set in.
How, then, do litigants gain peace of mind concerning alimony awards?
While the court does not have the authority to draw a line in the sand, the parties to a divorce can bargain for an agreement calling for certainty. This is commonly referred to as a “Karon” waiver. Amount and duration of spousal maintenance are locked in, regardless of future circumstances. The court is divested of jurisdiction to entertain any future maintenance requests.
Most litigants view a Karon waiver as a sort of win-win. Each side knows exactly what to expect as time passes, so they can plan accordingly. Finality and predictability have value. Bear in mind, however, no judge can impose a Karon waiver. It must be agreed to by the parties.
Another concrete approach to resolving spousal maintenance claims involves a “buyout.” The requesting party accepts a certain sum of money from the other side in exchange for waiving alimony forever. Short to middle-length marriages are the most common situation in which a buyout is agreed to. Many find it much easier to simply have one check issued and walk away from the situation. The value of the buyout is often calculated by determining the amount and duration of an alimony award, multiplying those variables, and discounting the ultimate number to account for cash up front.
Spousal maintenance doesn’t have to be confusing – despite being an unpredictable issue in divorce. Feel free to reach out with your questions.