Maintenance. There are generally three (3) aspects to maintenance: eligibility, amount, and duration.
Eligibility: A spouse is not “eligible” for maintenance if his/her gross income equates to 40% of the parties’ total gross income.
By way of example, if Spouse 1 has gross income of $40,000 and Spouse 2 has gross income of $60,000, it is probably not a maintenance case because $40,000 is 40% of their total gross income of $100,000.
Amount: Prior to 2019, the “amount” of maintenance was crudely estimated by taking 30% of the gross income of Spouse 2 (payor) and subtracting 20% of the gross income of Spouse 1 (payee). Currently, the “amount” of maintenance is now estimated by taking 33.33% of the net income of Spouse 2 (payor) and by subtracting 25% of the net income of Spouse 1 (payee).
By way of example, if Spouse 2 has net income of $100,000 and Spouse 1 has net income of $40,000, maintenance (before applying the cap explained below) would be $23,300 (33.33% of $100,000 less 25% of $40,000), or $1,941.66 per month. However there is a cap: after subtracting maintenance paid by Spouse 2 and adding it to the income of Spouse 1, the adjusted net income of Spouse 1 can not exceed 40% of the combined net income of the parties (in this case, 56,000). Spouse 1 now has an adjusted net income of $63,300 ($40,000 plus maintenance to be received). Consequently, because $63,300 is greater than 40% of $140,000, maintenance would be capped at $16,000 per year ($140,000 times 40% minus $40,000).
Duration: “Duration” of maintenance depends on duration of the marriage, measured from date of marriage to the date the divorce is filed (not the date of divorce). The duration calculation also changed in 2019. Prior to 2019, the legislature derived the following formula for determining the duration of maintenance:
Prior to 2019 Duration Formula: For a marriage 5 years or less, maintenance lasts 20% of the marriage. So, for a 5 year marriage, there is 1 year of maintenance;
For more than 5 years but less than 10 years, maintenance is for 40% of the marriage;
For more than 10 years but less than 15 years of marriage, maintenance is 60%;
For more than 15 years but less than 20 years, maintenance is for 80%; and
For 20 years or more, maintenance was “permanent “, which was a horrible misnomer. In this context, “permanent” really means “indefinite”; thus, the amount will continue for so long as things remain the same. If, however, a “substantial change in circumstances” occurs, maintenance may be terminated (e.g. death, remarriage, or cohabitation of Spouse 1) or modified (Spouse 1 earns more, wins the lotto or receives an inheritance, or, say Spouse 2 retires, is fired, or becomes disabled etc.)
2019 Duration Formula: For a marriage 5 years or less, maintenance lasts 20% of the marriage. So, for a 5 year marriage, there is 1 year of maintenance;
For a marriage 5 years to 19 years, maintenance duration may be established by using the below multipliers:
5 years (0.24)
6 years (0.28)
7 years (0.32)
8 years (0.36)
9 years (0.4)
10 years (0.44)
11 years (0.48)
12 years (0.52)
13 years (0.56)
14 years (0.60)
15 years (0.64)
16 years (0.68)
17 years (0.72)
18 years (0.76)
19 years (0.80)
For a marriage of 20 years or more, the legislature has changed the title of maintenance from “permanent” to more correctly “maintenance for an indefinite term”. Typically, though not always, this equates to longer duration of maintenance, for example, a term of years equal to the duration of the marriage.
The above is an oversimplification and may not apply if the parties’ combined gross incomes are quite high, or their net worth is quite high, or the lesser-earning spouse has a large nonmarital worth.
There are several other factors to consider when determining maintenance including, but not limited to, standard deductions, itemized deductions, each party’s needs, and varying incomes (e.g. bonuses, loss or gain of employment, and commissions). Contact us today to see how we can help!