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If My Spouse Divorces Me, Will I Have the Money to Survive?

Emily FretwellUnder Missouri law, in a divorce, you might be entitled to a monthly payment from your ex-spouse known as maintenance and formally known as alimony. The trial court can award maintenance if it first determines that the individual seeking maintenance “lacks sufficient property, including marital property apportioned to him, to provide for his reasonable need” and second finds he “is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.”  RSMo. § 452.335.

These two threshold requirements must first be met before the court can consider an award of maintenance. Upon finding the threshold requirements exist, the court must then determine the appropriate amount of support. Unlike child support, there does not exist a calculation to help judges arrive at a presumed amount of maintenance. Instead, the court must consider all relevant factors in arriving at an appropriate amount. Specifically, the court must consider the following:

  • The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
  • The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
  • The comparative earning capacity of each spouse;
  • The standard of living established during the marriage;
  • The obligations and assets, including the marital property apportioned to him and the separate property of each party;
  • The duration of the marriage;
  • The age, and the physical and emotional condition of the spouse seeking maintenance;
  • The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
  • The conduct of the parties during the marriage.

 

In addition, the court must consider any other factor relevant to the specific and unique case before it. There is not one factor that requires more consideration than any other. Courts have upheld maintenance awards in marriage of very short duration, but where the court was persuaded by the other factors that maintenance was appropriate.

The court must take into consideration the same factors, as well as any other relevant fact, in determining the duration of the maintenance. As a general rule, the appellate court has a preference for modifiable maintenance of no limited duration. Meaning, that the maintenance continues until further modified by the court in a subsequent action. However, if the court has substantial evidence that the financial situation will change (i.e. the requesting party will have more financial resources or the paying party will have less), the court can enter a non-modifiable maintenance order with a limited duration. For example, if the evidence shows that the requesting party will graduate with her Masters Degree and there are jobs open in her field with an income sufficient to meet her needs, the court might terminate the maintenance upon her graduation. Due to the speculative nature of all things in the future though the preference is to make the duration unlimited and leave it to the parties to request a modification upon the occurrence of the future event.

The court is given wide discretion in weighing these factors and arriving at an appropriate duration and amount of maintenance. The court must consider these factors and balance the needs of the spouse requesting maintenance against the ability of the paying spouse to provide. The court cannot, however, weigh and consider the factors unless the party successfully presents the information to the court to enable the judge to recognize the financial needs and resources of the parties. The presentation of this evidence will necessarily involve the assistance of a skilled family law attorney and may even involve the assistance of vocational experts or forensic financial experts.

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