A Decree of Divorce may award to either party an allowance for future support, known as maintenance. The purpose of spousal maintenance is to make up for economic imbalances between the parties such as earning power and standard of living.
The Court has wide discretion in determining whether or not maintenance should be awarded. Maintenance is not an absolute right, and the primary consideration in making such award is the need of one spouse to receive maintenance and the other spouse’s ability to pay.
A maintenance award must be fair, just and equitable in light of the circumstances. In determining whether and in what amount maintenance should be awarded, a Court will consider the age of the parties; the parties’ present and future earning capacities; the length of the marriage; the property owned by the parties; the parties’ needs, the time; sources and manner of acquisition of property; family ties and obligations of the parties; the parties’ overall financial condition; and economic fault (dissipation of marital assets).
Maintenance may be payable as a lump-sum (either one large payment or installments), in periodic payments over a definite amount of time, on a percentage of earnings, or on any other basis. Periodic maintenance paid monthly is the most common maintenance arrangement.
A Court retains jurisdiction after entry of a Decree of Divorce to modify a court-ordered maintenance award. However, no modification may be made to a maintenance award without the consent of the party liable for the maintenance, if the modification would increase the maintenance award or accelerate the liability for the unpaid maintenance beyond what was ordered in the Decree of Divorce.
In this way, absent the payor’s consent, a Court may modify the maintenance award downward, but not upward.
With respect to the amount of a maintenance award, many counties in Kansas have developed guidelines to be used in the determination of a maintenance award. These guidelines are useful in determining the methods used by that county in calculating maintenance, but these guidelines are not binding on the Court.
The Johnson County Family Law Guidelines, for example, provide that monthly maintenance is calculated as 20% of the difference in the spouses’ incomes and is payable for a time equal to one-third of the length of the marriage.
Maintenance is considered income to the recipient party and is a reduction in income for the payor spouse for income tax and child support calculation purposes.
The duration of Court-ordered periodic maintenance is limited to 121 months; however, the parties may, in a property settlement agreement, agree to a longer maintenance term. Court-ordered maintenance usually terminates upon death of either spouse or remarriage of the recipient spouse.
A separation agreement may set forth additional circumstances under which maintenance is terminated, including co-habitation; however, “co-habitation” should be clearly defined to include residence with an adult non-relative of either sex.
Maintenance may be paid directly to the Kansas Payment Center (KPC). The recipient must establish an account with the KPC and may elect to receive the monthly maintenance payments in the form of a reloadable debit card, direct deposit, or check.
Missed maintenance payments may result in judgments against the payor spouse for each missed payment. These judgments may be enforced by garnishment of wages, seizure of bank accounts, real estate, and other non-exempt property. Additionally, a party who fails to make maintenance payments as ordered may be charged with contempt of court.
If found guilty of contempt of court, the non-paying spouse may punished by imprisonment until the party cures the contempt, fines, and/or attorney fees. Maintenance is a domestic support obligation and is typically not dischargeable in bankruptcy.