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Getting Spousal Support in a Divorce

The financial fallout of a divorce is a painful reality that most couples must face. Even in households where both spouses work, which is a necessity for many families, shifting from two incomes down to one usually requires immediate adjustments to avoid financial collapse. For spouses who do not work or who earn meager incomes, the economic impact of the end of a marriage can be disastrous. Often, the stay-at-home or under-employed spouse chose that position in order to raise children, but in divorce, these individuals are at a severe disadvantage when they try to reenter the workforce. In addition, these spouses are likely to remain the primary caregivers for the couple’s children, which limits when and how they can work.

It is not in the best interest of the government to grant a divorce that leaves one spouse with little to no financial resources because it could lead to the individual seeking public assistance for necessary support. One way the law addresses this inequity is to allow courts to award spousal support, or alimony, in certain situations. Under Indiana law, spousal support ordered by a court can be temporary or indefinite. In addition, the parties can agree privately to a spousal support arrangement. A discussion of when courts will award spousal support, and important implications that impact private agreements on this issue, will follow below.

Indefinite Support

Indefinite support essentially means an award of spousal support that has no set end, and could end up being a permanent obligation. Indiana is generally reluctant, unlike other states, to grant spousal support that could last years or decades, except in extreme cases of need. Generally, indefinite support is only available in two situations: one spouse is mentally or physically incapacitated preventing him or her from generating self-support, or a child has a disability that prevents a spouse from working. In the second circumstance, the parent must also lack sufficient property to provide for his or her needs, including any property awarded as part of the divorce. The support obligation for an incapacitated spouse lasts as long as the incapacity exists, so it could conceivably be the remainder of the parties’ lives. For an incapacitated child, the support lasts as long as the court decides it is appropriate, so it can vary widely from case to case.

Temporary/Rehabilitative Support

In all other circumstances, courts will order temporary support, which cannot last more than three years from the date the divorce is finalized, to allow a party to obtain the training or education necessary to increase his or her earning capacity to adequate levels. When courts consider awarding rehabilitative support, they must weigh the following factors:

  • The education level of each spouse at the beginning of the marriage and at the time of divorce;
  • The earning capacity of each spouse, including work experience, length of time in or absence from the job market, and employable skills; and
  • The time and cost it would take for the spouse requesting support to get the training needed to find adequate employment.

Support by Agreement

Finally, the parties may form their own agreement on spousal support as part of a prenuptial agreement or in the divorce property settlement. Private agreements give the parties more control and flexibility over the amount and duration of the spousal support, and courts will generally not investigate the fairness of these arrangements unless there is evidence of fraud, duress, or unconscionability. It is assumed the parties knew the consequences of the terms of the agreement, and no evidence or hearing on actual need or the ability to pay the support will occur in the divorce. There can be significant tax consequences associated with spousal support for both parties, and an attorney should be consulted before an agreement is formed.

Get Legal Advice

Spousal support is often a contentious issue that can benefit from the eye of an experienced divorce attorney. Regardless of which side you are on over this issue, the outcome is significant, and a divorce attorney can inform you about the legal consequences, as well as present the best argument on your behalf in court. Attorney Christopher L. Arrington represents clients in all aspects of divorce, and will work to get you the best possible result. If you live in Danville, Avon, Brownsburg or the surrounding area, contact him to schedule an appointment.

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