Spouses headed for divorce often wonder about maintenance–what used to be called alimony.
Here in the Kansas City area, and presumably other Missouri courts, the judges lean away from maintenance. This is especially true where the marriage is short–less than 10 years for instance.
Maintenance in the typical situation arises when one spouse lacks income to pay his/her necessary bills while the other spouse has income to contribute. Many times a judge will take a sharp pencil, so to speak, to the expense amounts of the needy spouse; then do likewise to the expenses of the spouse who may have extra income. If that review shows a legitmate shortage of income for one spouse, and income remaining after expenses for the other spouse, then the extra income may be ordered paid to the needy spouse in an amount that the court finds is best after the court also considers the factors set out in Missouri statute 452.335 (marital misconduct, time to re-educate, etc.). Often times neither spouse is really happy about a maintenance order–one spouse thinks it too high, while the other thinks the amount awarded is too low.
A major consideration in maintenance cases is how long will the payor have to pay maintenance. Death or remarriage of the payee often terminates the obligation to pay maintenance unless the parties have agree otherwise. The key to keep in mind, however, is that unless there is sufficient proof of a definite date that maintenance is no longer needed, it may be required to be paid until such death or remarriage which may be years and years down the road.
Because the risk of an open-ended order to pay maintenance with no termination date is so great, many spouses faced with a real possibility of the court ordering he/she to pay maintenance often negotiate about a stop date on maintenance. To get that stop date, the paying spouse often has to give up assets or agree to pay a somewhat high amount per month as compared to what he/she thinks he would have to pay if he left it up to the judge to set the amount and duration.
Another motivation for settling to get a definite stop date on maintenance is that without the agreement, the party receiving maintenance can later file a motion to modify under Missouri statute section 452.370 to increase the amount or duration of maintenance being paid. To make that case for modification, the receiving party must prove a substantial and continuing change of circumstances based on the facts of the case. Negotiating a written agreement on maintenance with a provision that it is non-modifiable protects against a later modification case to increase maintenance.
A pretrial conference with the judge is a good way to get a read on what the judge may do and thus what it may take to reach an agreement on maintenance. Each legitimate maintenance case tends to turn on its own facts and there is no formula in which to simply plug numbers as with child support. The experience of counsel in similar cases may be best guide, aided by the pretrial conference.
Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com
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