Spousal Support and Alimony Lawyers in Overland Park, Kansas

Couples usually enter a marriage with the intention of building a life together, for better or for worse. Nonetheless, more than 2,000 couples filed for divorce in Johnson County, Kansas in the last year. When couples divorce, whatever they had built together is divided as they go their separate ways.

There are times when one spouse needs financial help to build a new life and the other spouse is capable of providing it. Although it sounds simple, alimony can be very complicated and is often a highly contentious part of a divorce.

If you are considering filing for divorce, have already started the process, or have been served divorce papers, you may be wondering if you can receive, or if you will have to pay, alimony. You have questions, and the team at Roth Davies LLC may have the answers you need. They have helped hundreds of clients in Overland Park and throughout Johnson County, Kansas through their divorce and on to the next chapter of their lives. Reach out today to schedule a consultation.

What is Alimony, Support or Spousal Maintenance?

Alimony, spousal support, and spousal maintenance are different terms for the court-ordered payment one spouse pays to the other during the divorce process or for a period after the divorce is finalized. Who pays alimony, if either spouse, depends on need, income, and resources not gender.

What Determines the Amount of Maintenance?

The Kansas statutes pertaining to maintenance are more vague than the child support guidelines. K.S.A. 23-2902 et seq. states the court may enter any maintenance award the court deems “fair, just and equitable under all of the circumstances.”

Over the history of the statutes, lower courts in Kansas have refined this broad standard, and today, there exist a number of factors the court may consider when determining the appropriate amount of maintenance to award. These factors may include: (1) age of the parties, (2) present and future earning capacity of both parties, (3) how long the marriage lasted, (4) property owned by each individual spouse, (5) when, how, and from where the individual property was obtained, (6) the needs of each spouse, (7) family obligations, and (8) the overall financial resources of each spouse.

Some jurisdictions, such as Johnson County, use guidelines to help determine the amount of maintenance. These guidelines are not required, but judges may use them as suggestions if they deem appropriate. This means that the court may ignore the guidelines altogether or grant a higher or lower maintenance award. Typically, courts are given a wide degree of deference when determining a maintenance award. For this reason, and others, maintenance awards can be difficult to appeal to a higher court.

How long does Alimony last?

In most cases, alimony is temporary. In fact, Kansas law prohibits the court from awarding maintenance for longer than 121 months. At that time, the need for support can be reviewed and additional support awarded.

There are three types of alimony awarded in Kansas:

1. General support may be awarded when one spouse’s income is significantly higher than that of the other spouse.

2. Reimbursement support may be awarded to pay back a spouse who provided significant financial support to the household while the other spouse pursued an education.

3. Transition support may be awarded to a spouse who needs time to pursue education or training to qualify for employment that will provide adequate income for that spouse following the divorce.

What are the factors for determining if you will get alimony?

A spouse must demonstrate the need for alimony, and the other spouse must have the financial ability to pay spousal maintenance while meeting their own financial obligations. Other factors the court may consider include:

• The length of the marriage

• The standard of living during the marriage

• The contributions of each spouse during the marriage

• The age and physical and mental health of each spouse

• The need for further education or training for a spouse to become self-sufficient

Is Maintenance/Alimony always awarded?

Maintenance is not always awarded. The awarding of maintenance is controlled by a variety of considerations but is generally tied down to one spouse’s needs and the other spouse’s ability to pay. Therefore, if the spouses have equal or near equal paying jobs or earning potential, maintenance is generally not necessary or warranted. This is because maintenance is designed to ensure the non-primary earning spouse will be able to maintain his or her lifestyle after the divorce. Another common reason why maintenance may not be appropriate is when the marriage was very short. In that situation, neither spouse is likely to have greatly altered their lifestyle in such a way that transition to single life would be difficult. However, maintenance may be appropriate under certain circumstances, even if the spouses have similar paying jobs or earning potential or the marriage was short.

The spouses also may agree to forego any maintenance. This can be done through a prenuptial agreement or as an agreement in the context of the divorce. The court may require the spouses to explain the waiver of maintenance, particularly in cases where the awarding of maintenance seems appropriate.

How Is maintenance/alimony paid?

There are various ways that maintenance can be paid. Maintenance may be paid as a lump sum at the time of divorce or in periodic installments over an agreed upon time period. However, a maintenance award may not exceed 121 months absent an agreement from both parties. For periodic payments, the paying spouse may either make the payments directly to the receiving spouse or have the amount deducted from his or her paycheck.

The timing and method of payment can also be factors when considering the amount of maintenance to award. A lump sum may be considered a rehabilitative payment, designed to allow a spouse to become financially independent immediately after a divorce. This may mean that a smaller award is required. An important consideration in this case would be the ability of the paying spouse to make a large lump sum payment at the time of divorce.

The tax consequences of maintenance also generally factor into whether each spouse would prefer to make and/or receive payments. For a divorce finalized in 2023 or prior years, the maintenance may be deducted from the paying spouse’s gross income for the purpose of income tax reporting. On the other hand, the receiving spouse must report the maintenance received as income for tax purposes. Starting in 2024, the tax law regarding maintenance is changing under federal law. For any divorce finalized on or after January 1, 2024, maintenance will no longer be deductible for the paying spouse and will not be counted as income for the receiving spouse.

Can Alimony orders be changed or Modified?

The court may order future alimony payments to be modified or ended under circumstances included in the divorce decree. The 121-month rule still applies, even in cases when the alimony award is modified.

If the divorce decree provides for the court to review the alimony award for potential modifications to maintenance, and the spouse receiving alimony files a motion for modification prior to the expiration of the original maintenance period, the court may hold a hearing on the motion to decide whether the alimony should be reinstated.

Can the Amount of Maintenance or Timing of Payments Be Changed?

Competent attorneys will be able to anticipate any surprises when agreeing to the amount and terms of maintenance, including a list of circumstances that allow for modifying the maintenance agreement. This list includes the death of either spouse, remarriage or cohabitation by the receiving spouse, change of employment by either spouse, or an illness by either spouse. It is possible to dictate which circumstances will allow a modification of maintenance, including whether the amount can be increased or decreased. However, spouses typically agree to a decretal clause, which allows for the amount to be decreased, but never increased, by court order. When the divorce agreement provides for modification, the court cannot modify the maintenance amount. Nevertheless, a court is still allowed to interpret the meaning of the agreement.

A modification to the payment agreement may also be triggered during the life of the agreement. Two common examples of this instances are an escalation clause and a cost-of-living adjustment. An escalation clause modifies the amount of maintenance based upon the earnings of the paying spouse, especially in instances where the income is inconsistent, such as fully-commissioned based salaries. A cost-of-living adjustment is adjusted periodically based upon inflation of the US Dollar.

There are many factors to consider when creating a maintenance payment plan fair for both spouses. In addition, the very idea of maintenance payments may be an emotionally-charged and tension filled aspect of the divorce proceeding. For this reason, it is important for a spouse to consult an experienced attorney to think critically about what each spouse desires from the maintenance agreement.

How does Alimony affect taxes?

In divorce cases settled after January 1, 2019, the payer is no longer able to deduct alimony payments from their income taxes, and the recipient is no longer required to report the spousal support as income. Since this change affects each spouse’s income and tax burden, it is wise to discuss award income and tax implications with an attorney.