Table of Contents:
1. Summary of Maintenance Norms
2. Detailed Explanation of Maintenance Norms
3. Impact of Child Support
4. Temporary Orders
5. Undifferentiated Family Support
6. Substantial Assets
7. Returning to School or Work
8. Intentionally Decreased Income
9. Attacking the Theory Behind Maintenance
10. Affidavits of Support (For International Couples)
11. For Unmarried Couples or Separated Spouses?
12. Modifiability & Automatic Termination of Maintenance
VAGUE LAW. You can read Washington’s law on spousal maintenance at RCW 26.09.090, but it would be a waste of your time. Family law jurists (e.g., judges) can award virtually however much or little maintenance they see as fair. This makes maintenance less predictable than most other areas of the law.
SUMMARY OF MAINTENANCE NORMS. Practitioners often say judges award alimony for a time period equal to about 25% of the marriage’s length. This is perhaps the best one-sentence summary available but is extremely rough.
A more accurate (though still rough) summary is as follows:
- Short Marriage (0-5 or 0-3 years of marriage): Maintenance of enough to help meet the lesser-earning spouse’s basic everyday needs for a few months while he or she gets back on his or her feet financially. Usually the payments end there or taper off suddenly. Payments almost never extend beyond entry of the divorce decree.
- Mid-Length Marriage (5-25 or 3-20 years of marriage): Maintenance to the lesser-earning spouse for 20-33% of the length of the marriage. The initial monthly amount might be enough to equalize the parties’ economic positions, or it might be enough to meet basic needs, or something in-between. The monthly amount usually tapers off.
- Long-Term Marriage (25+ or 20+ years): Maintenance of enough to equalize the parties’ economic positions for many years if not for life.
For those who want more than a quick summary or are not sure what the summary means, the rest of this article provides a much more detailed explanation with additional factors. This is where it gets complicated. So put on your reading glasses and set some time aside.
DETAILED EXPLANATION OF MAINTENANCE NORMS. Washington law requires courts to consider the requesting spouse’s need for maintenance and the other spouse’s ability to pay. Maintenance should be no more than the would-be-recipient needs, nor should it exceed the would-be-payor’s ability to pay. Each party’s ‘need’ and ‘ability’ is relative to the other spouse. For instance, a court might require a working husband who can barely meet his bills to nonetheless pay maintenance if the wife did not work during the marriage, has no income, and has had no time to look for a job. Conversely, maintenance would be inappropriate if the parties’ economic positions were roughly equal, since each parties’ relative need and ability would be the same.
The recipient’s ‘need’ is also relative to the length of the marriage. When dissolving shorter marriages, courts often interpret ‘need’ as meaning basic needs. So a party requesting maintenance after a short marriage might only receive enough maintenance to put food on the table. The longer the marriage, the more courts try to bring the recipient’s economic position to the same level as the payor’s. After a very long marriage, a party requesting maintenance might receive as much as half an ex’s monthly income.
In the 1980s a King County judge named Robert Winsor wrote an article that helped further shape most jurists’ view of maintenance in Washington. According to Judge Winsor, maintenance is a tool to achieve an end, and that end depends upon the length of the marriage. He then divided marriages into three categories: short (0-5 years, though some say 0-3 years), mid-length (5-25 years, though some say 3-20 years), and long-term (25+ years, though some say 20+ years).
For short marriages, Judge Winsor said to put the lower earning spouse back in the economic position he or she was in prior to the marriage. Most judges interpret this as an instruction to award maintenance of just enough to help the lower earning spouse get back on his or her feet economically. For example, a spouse might receive enough maintenance to pay his or her basic bills for a few months while he or she looks for a job. After those few months, maintenance following a short marriage tends to stop or decrease drastically. For these marriages, maintenance is almost exclusively a temporary order during the pendency of the divorce—it almost never extends beyond entry of the divorce decree.
By contrast, for long-term marriages, Judge Winsor said to put the parties on equal financial footing for many years if not for the remainder of their lives. This means maintenance awards after long-term marriages tend to be enough to ensure each party has half the former family’s financial resources after considering future earnings, maintenance, and property. Consider a simplified example where the parties are debt free, in good health, and each have half the former couple’s net assets. Assume the husband makes $10,000 per month and the wife earns $2,000. The court would probably order the husband to pay the wife about $4,000 per month in maintenance. The parties would then be in equal financial positions in that they would both have $6,000 per month.
For mid-length marriages, Judge Winsor said to do something in-between his recommendations for short and long-term marriages. Given this lack of clarity, mid-length marriages tend to be the least predictable. Most judges award maintenance lasting 20-33% of the length of the marriage, and the monthly amount tapers with time. For example, the judge might award $2,000 for 2 years, and then decrease that amount by $200 every six months until maintenance ends. The exact monthly amount is especially difficult to predict. It might initially be an amount that equalizes the parties’ financial positions, though sometimes judges only award enough to ensure the recipient can meet everyday needs. Then it tapers to ween off the recipient.
IMPACT OF CHILD SUPPORT. A court should first determine child support, then determine the additional amount of maintenance warranted, if any. Though child support is for the child, the funds also benefit the child’s parent to a large extent. Payment for the child’s expenses are of benefit to everyone in the household. The roof over the child’s head covers the parent, the heat in the child’s house warms the parent, the cable bill for the child supplies TV and internet access for the parent, and so on. Often this dramatically reduces maintenance awards when the recipient also receives child support. In fact, child support often effectively reduces maintenance dollar for dollar. This is especially true when the court is attempting to equalize the parties’ financial positions. Many judges and commissioners will only award maintenance to the extent it leaves the recipient with half the former family income or less, including child support.
WITHOUT REGARD TO MISCONDUCT. Washington is a ‘no-fault’ divorce state. As a result, many of the state’s divorce-related statutes prohibit courts from considering a spouse’s ‘misconduct’, including the maintenance statute. This prohibition misleads many non-attorneys to believe Washington courts can never consider a spouse’s misconduct, which is incorrect. It actually means Washington courts cannot punish a spouse FOR CAUSING THE DIVORCE. Wrongdoing remains relevant in other regards, such as when a spouse wrongfully decreases his or her income to avoid a maintenance award, or when a spouse hides economic information.
This might seem like hair-splitting, but it makes a great deal of sense when comparing Washington to ‘at-fault’ divorce states. In at-fault divorce states, courts sometimes decrease alimony and property awarded to a spouse who caused the divorce. For example, a housewife who brought about the divorce by cheating on her husband might receive no alimony and very little property. On a visceral level, this seems fair. But determining who caused a divorce often becomes impossible, because both spouses typically hurt each other during their married lives. Moreover, attempting to determine who caused the divorce makes the process more antagonistic.
Washington prefers to ignore who caused the divorce.
OBTAINING TEMPORARY MAINTENANCE. Courts often adopt temporary orders during the pendency of a divorce. This is because divorces take eleven months on average from start to finish, which is a long time to wait for some types of relief. Common temporary orders include temporary maintenance. Courts do not award temporary maintenance automatically; a party must officially request it by filing a motion. The process of filing for temporary relief can be complicated, but we have an article on the subject.
TEMPORARY UNDIFFERENTIATED FAMILY SUPPORT. Given that many judges see child support and maintenance as interchangeable, courts often award temporary ‘undifferentiated family support’ rather than separate amounts for temporary child support and temporary maintenance to the same person. Awarding an undifferentiated figure saves time at temporary order hearings.
Undifferentiated support can be nearly any amount the court deems fair, but it often divides the former family’s monthly income evenly. For example, a husband who makes $12,000 per month might pay $5,000 per month to a wife who earns $2,000 per month. This would result in each having $7,000 per month.
DO I WANT UNDIFFERENTIATED FAMILY SUPPORT? If you are the payor, you generally prefer undifferentiated support for tax reasons (and recipients usually do not want undifferentiated support, also for tax reasons). This is because undifferentiated support is presumptively tax deductible for the payor and taxable income for the recipient. By contrast, only part of separate awards would be deductible for the payor (and taxable for the recipient). More specifically, the child support portion of separate awards usually passes ‘after taxes’. Passing after taxes means child support is neither deductible for the payee nor taxable income for the recipient.
FINANCIAL DECLARATION. When either party requests maintenance or other financial relief in a divorce, each spouse must submit a financial declaration. Financial declarations are fill-in-the-blank forms the state has created, and you can download one from the Washington Court Forms Website under Family Law > Divorce > Divorce (Dissolution). The declarations force each spouse to itemize his or her income and expenses which, for maintenance disputes, helps the court determine relative need and ability. This tends to be the most important information in a maintenance argument. Each party wants his or her expenses to appear high and income to appear low. When filling out your own financial declaration, you should be truthful as possible but err on the side that benefits you. Likewise, you should point out where the opposing party has falsified information on his or her financial declaration.
PROOF OF INCOME. Along with a financial declaration, each party should provide proof of income. Proof of income can take many forms, but courts usually expect a) the last two years of tax returns and b) paystubs from the current calendar year.
In some cases, the first paystub of the year and most recent paystub will suffice. But if unsure, err on the side of supplying as much proof of income as possible. If you do not have the proof, say so. The court will expect you to provide these documents so long as they are in your possession, your employer’s possession, or the possession of your agent (such as your accountant).
SUBSTANTIAL ASSETS. While some judges do not consider assets when determining maintenance, others will weigh assets heavily. For example, an unemployed housewife who inherited millions of dollars might not receive any maintenance, because she has no need.
RETURNING TO SCHOOL. Courts will sometimes increase or lengthen maintenance if the recipient wants to return to school. The following factors are often relevant:
- The Relative Increase. The smaller the relative increase, the more likely the court will award extra maintenance for schooling. For example, the court might be willing to increase maintenance by 10% for school, but not 90%. A party seeking increased maintenance should prove to the court how much the academic program will cost and how long it will take to complete.
- The Financial Resources of the Payor. The more easily the payor can afford extra maintenance for schooling, the more likely court will award it.
- Seriousness of Recipient. The more serious the recipient seems about returning to school, the more likely the court is to increase maintenance for an academic program. A spouse seeking increased maintenance should prove he or she has investigated the program and taken all reasonable steps toward enrolling.
- The Likely Benefit to the Recipient (and Any Children). The more benefit the recipient will derive from the increased maintenance, the more likely the court is to award it. A spouse seeking extra maintenance should offer evidence of how much he or she should be able to earn upon completing the academic program.
RETURNING TO WORK. Courts generally expect working-age spouses to work to their full earning ability if either of them needs maintenance. Consequently judges typically order unemployed spouses to search for a fulltime job.
This job-search requirement often comes as a frightening surprise to former housewives, especially when they have not worked outside the home in many years. Our firm advises housewives to join a homemakers’ support group and seek career counseling at a local community college, which is usually free.
Disability appears to be the only valid excuse for not working, at least according to analogous child support law in Washington. A parent who returned to school was still imputed income, as was a parent who reduced her work schedule to care for her children. (Notably, relatively new caselaw indicates the court must not impute a lifelong stay-at-home spouse until he or she has had time to get back on his or her feet financially.)
The spouse claiming a disability bears the burden of proving it. Letters from doctors might initially suffice as proof of disability. But a spouse’s alleged disability can become a hotly contested issue involving independent medical examinations, extensive medical records, and competing experts.
If a party does not work at his or her earning capacity, the court will usually ‘impute’ income at the amount he or she could earn. ‘Imputation’ means the court deems a party to have income he or she does not actually have. We have a separate article that explains imputation in detail.
REVIEW HEARING AFTER TEMPORARY ORDER. If a temporary order requires a spouse to find work or increase his or her work hours, the court will usually also schedule a review hearing for a date 1-3 months later. At the review hearing, the court will re-evaluate maintenance or undifferentiated support. If the recipient’s income increased, his or her financial support will typically decrease by that amount. If the recipient’s income has not increased, he or she will need to prove he or she nonetheless took all reasonable steps toward the goal. For example, a reasonable job search might entail at least two applications per weekday, excluding applications over the internet. If a party fails to find work and fails to perform a reasonable job search, the court will usually impute the spouse with income.
INTENTIONALLY DECREASED INCOME. Commonly a would-be payor intentionally decreases his or her earnings to avoid paying maintenance or child support. When this happens, the court imputes income at the amount he or she would have earned. The court will then award financial support as if the imputed income were actual income. Alternatively, the court can order a disproportionate award of the parties’ property.
ATTACKING THE THEORY BEHIND MAINTENANCE. One of the best defenses against a multi-year maintenance award can be a respectful attack against its theoretical framework. Perhaps the most commonly cited policy reason for maintenance is the assumption one spouse sacrificed his or her earning potential for the family. Traditionally this meant the wife sacrificed her career to care for the home, thereby freeing the husband to advance at work. At the end of a traditional marriage, the wife’s employment prospects would be minimal, whereas the husband’s income would be sufficient to support a family. Thus multi-year maintenance awards are often a means of compensating the housewife for her sacrifice.
But many marriages are untraditional. For example, sometimes both spouses fully pursue their careers, or the higher earning spouse was the one who had stayed home with the children. In these situations, the higher earning spouse can sometimes successfully argue for a reduced maintenance award, if done tactfully.
ENFORCEABILITY OF AFFIDAVITS OF SUPPORT (FOR INTERNATIONAL COUPLES). Affidavits of support present a common concern among American citizens who married noncitizens, brought them to the United States, and are divorcing. Often the citizen signed two types of affidavits of support as part of the immigration process. The affidavits are promises that the noncitizen will not become a financial burden upon the US government.
The first type of affidavit, called an I-134, is unenforceable. The second type, called an I-864, is enforceable, though not in divorce or maintenance proceedings. The non-immigrant spouse can bring a separate suit against the American citizen after the divorce to enforce the I-864. The separate case guarantees the noncitizen income of at least 125% of the federal poverty level. Any amounts he or she earns or receives from other sources count toward the basic support threshold; the citizen pays the rest.
To the extent the noncitizen earns and receives less than 125% of the poverty level, he or she can sue the citizen for back support, prejudgment interest at 12% per annum, and attorney fees for prosecuting the matter. In I-864 enforcement proceedings, the noncitizen has no duty to work or otherwise become self-sufficient. The US citizen is the only person responsible for the noncitizen’s support until the affidavit expires. Typically it expires when the immigrant spouse becomes a US citizen, works for approximately 10 years, stops maintaining the United States as his or her primary residence, or passes away.
To avoid a suit of this type, the American citizen should strive to ensure the noncitizen has support of at least 125% of the federal poverty level. This might mean agreeing to give more in maintenance and less of the parties’ property. It could mean exercising one’s ability to force the other spouse to work during the divorce proceedings. Or it could mean paying slightly more in maintenance so the noncitizen can return to school and become employable in the United States.
MAINTENANCE FOR UNMARRIED COUPLES? Washington law only supports maintenance awards if the parties were married or registered as domestic partners. Parties who lived in other marital-like relationships—sometimes called meretricious relationships, committed intimate relationships, or unregistered domestic partnerships—are not eligible for maintenance.
Moreover, Washington is not a common law marriage state. Couples in common law marriage states become married if they live together like a married couple for many years. Conversely, under Washington law, marriage requires a ceremony and official state certificate.
Washington only recognizes other forms of marriage, including common law marriage, if the marriages properly took place under the laws where the parties were located at the time. Courts in Washington generally will recognizes valid foreign marriages regardless how they occurred. The exceptions to this rule are polygamous and incestuous marriages, which Washington never recognizes under any circumstances.
MAINENANCE AFTER LEGAL SEPARATION. Washington will award maintenance in a legal separation just as in a divorce. The court performs the same analysis and follows the same procedures.
TRADING MAINTENANCE FOR OTHER FINANCIAL RELIEF. Parties sometimes agree to trade maintenance for other financial relief. For example, the would-be payor might offer a disproportionate award in return for a reduction in maintenance. These types of agreements are legally allowable except when they reduce child support. Child support is for the benefit of the child(ren), and parents generally cannot trade it or bargain to reduce or eliminate it.
Courts also often increase or decrease maintenance to offset a disproportionate property award.
MODIFIABILITY OF MAINTENANCE. By law, maintenance is modifiable when the parties’ financial positions change. For example, a recipient who becomes disabled and loses his or her job might request increased maintenance. Similarly a payor who becomes disabled and loses his or her job might ask the court to reduce or eliminate maintenance.
To modify maintenance, there must be an existing maintenance obligation. If the divorce decree does not award maintenance, neither spouse can request a maintenance modification at a later date, regardless whether their financial positions change. Moreover, the court probably cannot award a nominal amount of maintenance, such as one dollar per month, as a placeholder for a future maintenance modification.
Notably, a maintenance obligation can be rendered non-modifiable if the divorce decree specifically says so. The divorce decree can only say this if the parties agree to it.
For those who want more detail, read our firm’s separate article on maintenance modification.
AUTOMATIC TERMINATION OF MAINTENANCE. Maintenance automatically terminates upon the recipient’s remarriage. As a result, payors often half-jokingly encourage recipients to date and find new love.
The parties can stipulate to maintenance remaining in effect even after remarriage, but they must be very careful to spell this out clearly.
Maintenance also automatically terminates upon either party’s death.
LIFE INSURANCE AS SECURITY FOR MAINTENANCE. Given that maintenance automatically terminates upon the payor’s death, divorce decrees sometimes require the payor to purchase and maintain life insurance for the recipient’s benefit. This is the exception, not the norm. Normally the recipient can purchase life insurance him/herself, if desired.
That’s it! Hopefully this was helpful. Our firm believes in making quality legal information available for free online. For more free articles, guides, and videos, click the resources tab in the upper right corner of any page of our website.
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