Maintenance in Missouri is one of the most difficult things to predict in family law cases. Maintenance has little structure, varies greatly between counties and Judges, and often depends on several factors. These are included in RSMo. §452.335, and include the following:
- Does the person asking for maintenance lack sufficient property to provide for their reasonable needs?
- Is the person asking for maintenance unable to support themselves through appropriate employment?
- Can the person asking for maintenance acquire sufficient education or training to become employed to meet their reasonable needs? If so, how long will that take?
- What is the earning capacity of each spouse?
- What was the standard of living during the marriage?
- What are the obligations and assets assigned to each spouse in the divorce?
- How long were they married for?
- Does the person who would be paying maintenance make enough money to cover their own expenses and that of the spouse seeking maintenance?
- What was the conduct of the parties during the marriage?
- Are there any other relevant factors that the Court should consider?
Types of Maintenance
There are two types of maintenance: Modifiable maintenance and Term maintenance.
Modifiable maintenance is how most people think of maintenance. I have to pay my ex $XXX per month until one of us dies, they get remarried, or there is a material change in circumstances. It could go on for a very long time, but the drawback is that you often end up back in Court on a Motion to Modify, which means more stress and money paid to attorneys to fight.
Term maintenance has a set amount of time that the maintenance shall be paid for, and then it stops. Term maintenance cannot be modified by the Court, and it is owed until it is paid in full. This avoids coming back to Court to modify the maintenance payments, thereby saving a lot of time and money. Sometimes it is set up so that you owe your ex $XXX amount of money, and can pay it back at a rate of no less than $XXX per month. This allows for maintenance to be paid off early if the paying spouse chooses to do so.
One thing to note: Prior to the 2019 tax year, maintenance was tax deductible to the spouse paying it and taxable as income on the spouse receiving it. However, if your divorce was final after January 1, 2019, maintenance is taxable to the spouse who pays maintenance, just like child support. Unless something changes with the proposed tax laws, this could have a pretty major impact on maintenance payments.
The truth is that what you are going to be paying in maintenance largely depends on what Judge you get. It is one of the grayest areas that a family law attorneys deal with, as there are no clear cut rules or answers to the maintenance question. This is where having a dedicated family law attorney who knows the family courts well is going to be your best friend (if they are honest). Knowledge of the trends, factors to see if maintenance is necessary, and possible alternatives to maintenance are all things that attorneys deal with on a daily basis. We have been known to get creative to have a win-win solution sometimes. Other times, it is just best to ask the Judge what they think and go from there. Rarely, but sometimes, you just need to have a trail and lay out your case.
Wanting more information about maintenance? Give us a call at (314) 200-6101 to set up a complimentary phone consultation with one of our experienced attorneys.