Do I Have to Pay Alimony? A Discussion on Maintenance

Do I have to pay alimony?

Possibly, but not necessarily. First, some vocabulary: what most people call alimony, Missouri law calls maintenance - maintenance, alimony, and spousal support are all the same thing, and I'll use the terms interchangeably here, just as callers to my office do.

The most common misconception I hear on this subject is that maintenance is automatic - that if you were the higher earner during the marriage, you will be writing your ex-spouse a check every month, full stop. That's not how it works. Maintenance in Missouri is awarded only where one spouse actually needs it and the other spouse has the ability to pay it. In other words, the court looks at whether the requesting spouse can meet their reasonable needs through their own property and employment, and only if they cannot does the analysis continue on to the other spouse's ability to help close the gap.

How maintenance is decided in a contested case

When a Judge decides maintenance, the statute directs them to consider a list of factors - the financial resources of each party, the earning capacity of each party, the standard of living during the marriage, the length of the marriage, the age and health of the spouses, and so on. Notice what that list looks like in practice: a long marriage where one spouse stayed home while the other built a career is a classic maintenance situation. A five-year marriage between two working spouses with similar incomes is, generally speaking, not.

How maintenance is handled in an uncontested case

Here is the part relevant to my practice: in an uncontested divorce, maintenance is not decided by a Judge at all - it's decided by you and your spouse, like everything else in the case. The two of you agree on whether maintenance will be paid, how much, and for how long, and that agreement goes into the Settlement Agreement. In the majority of my cases, both parties waive maintenance entirely. In others, the parties agree to a set amount for a set period - say, $500 per month for 36 months, to pick some round numbers - and the paperwork reflects exactly that.

One decision worth understanding if maintenance will be paid: whether it is modifiable or non-modifiable. Modifiable maintenance can be changed by the court down the road if circumstances change substantially; non-modifiable maintenance is locked in - the amount and duration you agree to is what it will be, regardless of what the future holds. There are reasonable arguments for each, depending on which side of the check you're on, and this is one of those terms you and your spouse should settle on before the paperwork gets drafted.

For the record, and per my usual scope honesty: I will prepare the paperwork to reflect whatever maintenance agreement you and your spouse have reached, but I will not evaluate that agreement as to fairness, and I can't advise you on what you "should" agree to. That's the trade that keeps an uncontested divorce fast and affordable.

A quick note on taxes

Under the Tax Cuts and Jobs Act, maintenance payments in cases from 2019 forward are not taxable income to the recipient, nor a tax write-off for the payer. If you were counting on the old deduction you may have read about somewhere, keep in mind that article was probably written a while ago.

Thank you for reading. Please feel free to contact me for more information.