Maintenance (Alimony)

General Information

Maintenance, also known as alimony or spousal support, is a monetary award provided by one former spouse after their marriage ends. Maintenance may be awarded in an action for divorce, legal separation, or in rare circumstances following a divorce where the paying spouse was absent from Kentucky when the divorce decree was issued. The goal of maintenance is to ensure that each spouse does not have post-marital financial circumstances radically different than that of their former spouse. Sometimes this involves maintaining the standard of living established during the marriage. In other cases, this may result in maintenance being awarded for so long a time as to allow the recipient to acquire the education or job skills to be self-supporting. However, every circumstance is different.

Maintenance may only be awarded if the party requesting it:

  1. Lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs; and
  2. Is unable to support himself or herself through appropriate employment or is the custodial parent of a child whose conditions or circumstances require extra care and it is appropriate for that spouse not to seek employment outside the home.

That is, BOTH these conditions must be found for maintenance to be appropriate. Such requirements incorporate generalized legal standards (“sufficient property”, “reasonable needs”, “appropriate employment”) and therefore invite the judge to use a fair amount of discretion. Furthermore, the party seeking maintenance has the burden of proof in proving entitlement to it. Accordingly, it is generally prudent to utilize the services of an experienced attorney to present the best case for the desired maintenance award.

Purpose/Necessity

Maintenance is utilized to provide a former spouse with a standard of living close or equivalent to that experienced during the marriage or to afford the opportunity to “rehabilitate” himself or herself to become financially self-supporting. Temporary maintenance may be requested between the time the petition for divorce or legal separation is filed and when the final decree deciding the case is entered. A “permanent” maintenance award can then begin when the final decree is entered.

Maintenance is often awarded in the following circumstances:

  1. When the parties had a lengthy marriage and the requesting spouse has fewer economic prospects due to age, work experience, health condition, etc.
  2. When the parties enjoyed a high standard of living during the marriage and the paying spouse is financially capable of continuing this for the requesting spouse after the marriage ends
  3. When the requesting spouse has a low education level or little work experience
  4. When the requesting spouse has sought positions in line with his or her education or training, but none are available or do not provide a sufficient salary
  5. When the requesting spouse has to take care of a child or children, especially those with medical problems or developmental issues, making it difficult to also hold a job
  6. When the requesting spouse is seriously ill or at least presently injured
  7. When the requesting spouse contributed to the paying spouse’s high earning capacity (such as by supporting a spouse who obtained a professional degree or license)
  8. When the paying spouse has a lot of marital and non-marital (property owned individually before the marriage, inherited property, etc.) assets to provide for his or her own needs
  9. When the paying spouse is voluntarily underemployed (employed at a job paying far less than his or her earning capacity)
  10. When the paying spouse has intentionally reduced his or her income, such as through an “unreasonable” early retirement

Occasionally, after the entry of a maintenance award, it becomes necessary to seek an increase or decrease in the award. Motions must also be filed with the court to either terminate the award entirely or seek its enforcement.

Frequently Asked Questions

  • May an ex-husband receive maintenance?
    • Yes. Kentucky law allows both former husbands and former spouses to receive maintenance if they meet the legal criteria. KRS 403.200. Kentucky courts have awarded maintenance to former husbands with serious illnesses or limited education/skills. Under such circumstances, the former husbands were found to be unable to support themselves through appropriate employment.
  • May a person in a serious but non-marital relationship receive maintenance?
    • No. Kentucky law does not provide for support for an unmarried person after the relationship with his or her partner ends. Some other states allow such claims – sometimes called requests for “palimony” – to be heard based on breach of contract principles.
  • Can I receive maintenance from my ex-spouse who is not a Kentucky resident?
    • The party requesting maintenance must be a Kentucky resident. If so, he or she may obtain maintenance from a non-resident if:
      1. The parties were Kentucky residents during the marriage and the action is filed within one year of the paying spouse’s change of residence from Kentucky. See KRS 454.220; or
      2. The non-resident spouse consents to jurisdiction by waiver and entry of appearance.
  • Will maintenance affect how property is divided or vice versa?
    • In a divorce action, property division must occur before maintenance is considered. After that occurs, the maintenance award will be calculated. A spouse may be granted maintenance if he/she lacks sufficient property, including marital property apportioned to him/her, to provide for his/her reasonable needs. See KRS 403.200(1)(a).Thus, property division may affect the amount and/or duration of a maintenance award but a maintenance award will have no effect on property division.
  • Can the parties agree as to the amount and terms of maintenance?
    • Yes, the parties are free to agree as to the amount of maintenance, how frequently it will be paid, when the obligation to pay will terminate, etc. If the parties cannot agree they must file motions describing their respective financial situations and the court will make a decision as to what terms of maintenance will be reasonable under the circumstances. There are very specific requirements as to what must be filed before the court will consider a request for maintenance or a response to such request. Therefore, it is important to consult an attorney if maintenance is at issue.
  • How will a court determine the amount and duration of maintenance?
    • The court must consider “all relevant factors.” KRS 403.200(2) lists some such factors:
      1. “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.”
      2. “The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment.”
      3. “The standard of living established during the marriage.”
      4. “The duration of the marriage.”
      5. “The age, and the physical and emotional condition of the spouse seeking maintenance.”
      6. “The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”
  • May the spouse who is ordered to pay maintenance use marital property to do so?
    • Yes. The spouse who is ordered to maintenance may use marital property (for instance, a shared bank account) to cover the maintenance obligation. However, he or she must later make up the difference if a portion of the recipient’s marital property is used. Therefore, it is generally best to pay maintenance via personal/separate funds.
  • Will fault/cheating affect the ability to receive a maintenance award or its amount or duration?
    • When considering whether to award maintenance at all, the court may not consider either party’s fault, including infidelity, squandering of financial assets, or refusal to seek employment. However, the court may consider either party’s fault when determining the amount and/or duration of maintenance, because by statute it is obligated to consider “all relevant factors.” See KRS 403.200(2).
  • Will maintenance be awarded if the party to pay cannot adequately support himself or herself?
    • Most likely no. The court is to consider the economic needs of both parties. Each party is allowed to satisfy his or her own reasonable needs post-divorce. If the would-be paying spouse’s financial condition is such that this is not possible, maintenance may be appropriate but nevertheless impossible to award. This is most common when the would-be paying spouse is very old with few assets or income or is very sick or disabled.
  • May a certain maintenance award entered into a divorce decree be modified or revoked?
    • According to KRS 403.250, “the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” Thus, if a major change of circumstances occurs (loss of job, severe injury, award of large inheritance, etc.), a client should contact his or her attorney to determine if changing the maintenance award is possible.If the maintenance arrangement was defined in a Separation Agreement, you must look to the terms of the Separation Agreement itself to see whether and how it may be modified. The Separation Agreement may specify that the terms pertaining to maintenance cannot be modified. However, despite this, a Separation Agreement may be modified if it is found to be unconscionable (e.g., fundamentally unfair). KRS 403.180.
  • Can I appeal the decision to award maintenance, its amount or duration, or the decision to deny maintenance?
    • Yes however it is difficult to win an appeal of a maintenance award, its terms, or a lack thereof. The party appealing the decision must prove that the trial court did not make findings of fact in light of the applicable legal factors and therefore abused its discretion.Given this high legal standard and the burden of proof on the appealing party, it is beneficial to consult an experienced lawyer to properly draft the appeal.
  • May I obtain maintenance if the divorce decree was already entered and it was not awarded at that time?
    • Generally speaking no. If maintenance is not requested and secured in the original divorce action, it cannot be obtained later on. There are some exceptions to this, such as if the other party was not truthful about his or her finances because of fraud, mistake, etc.For this reason, it is important to have an experienced attorney review the terms of a pending divorce and especially the related financial concerns. This will help a person obtain financial stability post-divorce.
  • Will the obligation to pay maintenance end when the recipient dies or remarries?
    • As a default rule, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance. The parties may overcome this default rule via written agreement or express provision in the divorce decree. KRS 403.250. The maintenance award is not terminated upon the recipient’s entry into a significant unmarried cohabitation relationship with another person, or for any other reason, unless agreed to by the parties.

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Maintenance

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