Indiana spousal maintenance law relatively narrow
State law does not allow judges much discretion.
One of the most stressful questions in many divorces is whether there will be a requirement that one spouse pay maintenance, traditionally called alimony, to the other after the divorce is final. This is normally a periodic money payment, usually monthly, for support, from the ex-spouse who is financially more secure to the other.
Indiana statute allows spousal maintenance in divorce or legal separation proceedings. The law provides for spousal maintenance in relatively narrow circumstances as compared to those of most other states.
It should be noted, however, that divorcing parties often negotiate the terms of their divorce and enter into a settlement agreement. This is often done through traditional negotiation between their attorneys or through mediation, arbitration or collaboration. In a negotiated agreement, they are free to create any spousal maintenance arrangement they wish. This may be more generous than what a judge could award under the statute if it comes before him or her should the parties be unable to agree.
While such maintenance is generally structured as tax deductible to the payer and taxable to the recipient, effective January 1, 2019, this tax arbitrage will no longer be available due to recent changes in the tax law. While those divorce decrees entered prior to the end of 2018 will continue to receive the beneficial tax treatment, those entered after that deadline will not.
Should the parties not agree on maintenance, the judge in the divorce or separation will decide whether to grant it under the Indiana statutes.
As of this writing in August 2018, Indiana law provides three bases for a spousal maintenance award.
First, if a spouse is incapacitated (physically or mentally) and the condition materially impacts his or her ability to support him or herself, the court can order maintenance during the time of incapacity. Should the medical conditions improve to the point where the spouse could support him or herself, the court could terminate maintenance.
Second, if one of the spouses does not have enough property (including marital property he or she will get in the division of property in the divorce) to meet his or her needs and this spouse has custody of an incapacitated child that prevent that parent from working, the judge can order maintenance in appropriate amount and duration.
Third, “rehabilitative maintenance” is available for up to three years if the court finds it appropriate after considering:
- Each spouse’s educational level when they married and at divorce
- Whether one spouse had homemaking or child care duties in the marriage that interrupted his or her “education, training, or employment”
- Each spouse’s earning capacity, considering education, skills, experience, training and time in (or absence from) the job market
- How long it would take and how much it would cost for the spouse seeking maintenance to get enough education or training to find an appropriate job
These are fairly narrow grounds for spousal maintenance as compared to other states. Interestingly, Senate Bill 102 was introduced in early 2018 that would have added new things a court could consider when deciding whether to award maintenance, among other things. But the bill has not passed as of this writing.
Anyone in Indiana facing divorce or separation who is concerned about whether he or she will be able to get a maintenance award or whether he or she will be ordered to pay maintenance should ask questions of an experienced attorney, who can look at what kind of negotiation position the person is in or what a judge is likely to grant under the circumstances.
The family lawyers at Cross Glazier Burroughs, PC, in Carmel represent clients across the state of Indiana in divorce and legal separation.