Is Alimony Allowed In Indiana?

Unlike many states, Indiana does not recognize alimony. Instead Indiana provides for spousal maintenance. Some may call this just another form of alimony. However, receiving maintenance payments are more difficult and not automatic.

Spousal Maintenance In Indiana

Indiana presumes each spouse will work and support themselves after separation. The exception to this is where one spouse is unable to work due to a disability. When this happens, typically the nondisabled spouse will pay the disabled spouse maintenance payments. Typically the nondisabled spouse can take the payments he or she makes to the disabled spouse off as a deduction on their federal income taxes.

There are only two time periods during a divorce in Indiana where spousal maintenance can be paid. The first period is during the provisional period of a divorce. The provisional period of a divorce is the time period between the filing for a divorce and the date at which the divorce is final. Courts are more likely to grant spousal maintenance payments where there is a disparity of income between the spouses, and one spouse needs maintenance payments in order to maintain his or her standard of living.

The second time period in which spousal maintenance payments can be ordered in Indiana is after the divorce is final. In order for Indiana courts to order such spousal payments to be made, certain criteria must be met. These criteria are contained in Indiana code 31-15-7-2.

Indiana 31-15-7-2 Finding Concerning Spousal Maintenance

Indiana law defines when awarding spousal maintenance would be appropriate. A court may make the following findings

  1. If the court finds the spouse to be physically or mentally incapacitated to the extent that the ability of that spouse to support his or herself is materially affected, the court may find spousal maintenance payments to be necessary during the time period of incapacity, subject to further court order.
  2. 2. If the court finds that
    1. A spouse lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse’s needs; and
    1. The spouse is the guardian of a child whose mental or physical disability requires that spouse to forgo employment, the court may determine maintenance is necessary for the spouse, in an amount and for a period of time that the court considers appropriate.

Rehabilitative maintenance

A court may consider certain criteria in determining if a spouse is entitled to rehabilitive maintenance. These factors include

  1. Educational level of each spouse at the time of marriage and at the time the action is commenced,
  2. Whether an interruption in a spouses educational, training, or employment of a spouse who is seeking maintenance occurred due to homemaking or childrearing responsibilities or both,
  3. The earning capacity of both spouses including educational background, training, employment skills, and length of time in or absent from the job market, and
  4. The time and expense necessary to acquire sufficient education or training appropriate employment.
  5. After considering these factors, a court may order rehabilitive payments to be made for a duration deemed appropriate by the court, but not for a duration exceeding three years from the final decree.

Temporary Spousal Maintenance

The most common time period in which spousal maintenance payments may be ordered is during the provisional period of a divorce. This occurs because one spouse has not worked during the marriage and needs maintenance payments in order to maintain the residence or alternative living arrangements.

when one spouse is ordered to pay spousal maintenance payments during the provisional period, such payments will end after the filing of the final divorce decree unless the divorce decree orders spousal payments to continue.

If your spouse owes you back spousal payments, an arrearage, you and your attorney need to ensure such arrearage is preserved in the final divorce decree. The final divorce decree controls what happens in the future. failing to preserve the unpaid court ordered amounts in the final divorce decree may lead to a waiver of such payments.

Post Decree Spousal Maintenance

Indiana code 31-15-7-2 identifies the three times when spousal maintenance payments may be ordered to continue after the filing of the divorce decree.

  1. If the court finds the spouse mentally or physically incapacitated to the extent that their ability to support themselves is materially effected. If the court determines this to be the case, the court may order spousal maintenance payments to continue so long as the recipient spouse remains unable to care for themselves.
  2. If the court finds the spouse lacks property to care for his or her needs, and the spouse is caring for a special needs child and the spouse is unable to work due to the need to care for the special needs child.
  3. Finally, and the most common, is where a spouse left his or her career or did not pursue their education in order to remain at home. if the court finds that in order to get a job, a spouse needs to pursue an education, the court can order spousal payments for up to three years.

Spousal Payments and Limits on Income

Not everyone will be required to make spousal payments in Indiana. The child support guidelines provide guidance to courts in making these determinations. Generally, temporary spousal payments shall not exceed 35% of the obligors weekly adjusted income. Finally the combination of child support and temporary spousal payments shall not exceed 50% of the obligor’s weekly adjusted income and should ensure the obligor has the ability to care for himself. In general care must be taken to ensure spousal maintenance beyond the final decree does not deny the obligor inadequate sustenance

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