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Maintenance in Washington

Maintenance In Washington: Spousal Support

Maintenance in Washington: Are you getting spousal support? Are you fighting it? Are you entitled to it? How can you tell?

What is maintenance?  Maintenance is where the court orders one spouse (usually, though not always, the husband) to pay part of their income to the other spouse. This used to be called “alimony“. How much one spouse pays, and how long they pay it, is the key question. That varies from case to case, and judge to judge, but there are several general factors in whether you may pay it. (Or get it!)

There are several different reasons for maintenance: compensatory, rehabilitative, etc. In my experience, it doesn’t matter a lot what you call it, or how you analyze it, because there are only two rules that really count: maintenance is based on need and ability to pay; and the court has to do fairness to both sides. (See case law, below.)

Is it Taxable? Yes. Normally it is a tax deduction for the payor, and taxable income for the payee. On the other hand, I have settled cases where the spouse agrees to, in effect, make it non-taxable; or agreed to up the amount of child support and lower maintenance, for tax purposes. But in general, the default is that you have to pay taxes on it.

Can You Get Support If You Are Just Living Together? Maintenance, in this state, is authorized by RCW26.09.090. The courts have held that you are NOT entitled to maintenance if you are not married. Living together (having a Committed Intimate Relationship) may well affect the length of maintenance; but you cannot get maintenance if you were never married.

Maintenance is not dividing assets. For example: I just finished a divorce trial where there was a fifteen year marriage. Husband (not my client) made just over $100,000 a year. The wife (my client) had not worked for most of the marriage. At the time of trial, she was working at her first full time (though contract) job, for $14.00 an hour. Result: the court awarded maintenance (in addition to child support) of $2,500 per month, for five years. The court ruled that she needed about five years to get a degree and get back in the workforce; but really that was just a basis. The real reason was that was what the court thought was fair.

Is There Long Term Maintenance? You bet. There is a (very) informal rule, that the court should award maintenance in a 1 to 3 ratio – that is, 1 year of maintenance to every three years of marriage. That is nowhere in the statute – but the last four cases I have tried, with different sets of facts, that’s roughly the way it turned out. In one, with 15 years of marriage, I got five years of support. In a 23 year marriage, I got seven years of support. In a ten year marriage, I got three years of support.

However, if you were married for more than 25 years, the court must (not should, but must) place the parties on an equal financial footing for life.   Trial courts have interpreted that to mean they have to divide separate property, including inheritances, in addition to community property. If you have a marriage 25 years or longer, you need to know about the details.

The amount of maintenance is harder to figure out. The amount is based on need and ability to pay. In re Marriage of Foley, 84 Wn. App. 839, 930 P.2d 929 (1997).  There are several factors: how much income each side has; what debts each person is paying; what kind of needs each side has.  There are some rules of thumb: if a wife is making over $50,000 a year, she is unlikely to get any maintenance. Getting maintenance for a husband is an uphill fight (though not impossible; I’ve done it.)  All things being equal, a man will get less maintenance than a woman will.  But to give you a good idea, we need to talk.

Some of the case law is:

“In the case of a long marriage [approximately 25 years or more], the goal should be to look forward and to seek to place the spouses in an economic position where, if they both work to the reasonable limits of their capacities, and manage properties awarded to them reasonably, they can be expected to be in roughly equal financial positions for the rest of their lives. Long term maintenance, sometimes permanent, is presumably likely to be used unless the properties accumulated are quite substantial, so that a lopsided award of property would permit a balancing of the positions without (much) maintenance.” (Winsor) “In dissolving a marriage of 25 years or more, the court must put the parties in roughly equal financial positions for the rest of their lives.” (Rockwell II)
Winsor, Robert W., “Guidelines for the Exercise of Judicial Discretion in Marriage Dissolutions,” Washington State Bar News, vol. 14, page 16 (Jan. 1982); III Wash. State Bar Ass’n, Washington FamilyLawDeskbook, § 32.3(3), at 32-17 (2nd ed. 2006)
“In dissolving a marriage of 25 years or more, the court must put the parties in roughly equal financial positions for the rest of their lives.” (Rockwell II at 452)
In re Marriage of Rockwell, 157 Wn. App. 449, 452, __ P.3d __ (2010);
In re Marriage of Rockwell, 141 Wn. App. 235, 243, 170 P.3d 572 (2007)

Post-dissolution economic circumstances are paramount consideration in awarding maintenance (see same point underProperty above).
In re Marriage of Williams, 84 Wn. App. 263, 927 P.2d 679 (1996), review denied, 131 Wn.2d 1025 (1997);

The non-exclusive statutory factors for assessing maintenance exclude marital misconduct (except see “spousal abuse” below) and include, but are not limited to, the financial resources of the party seeking maintenance, including the property to be awarded; the ability of the party seeking maintenance to be self-sufficient without assistance, including the receipt of child support; the time and education needed by the party seeking maintenance to become self-sufficient; the standard of living established during the marriage; the duration of the marriage; the age, physical and emotional condition and financial obligations of the spouse seeking maintenance; and the ability of the spouse from whom maintenance is sought to meet his own needs and obligations while paying maintenance.
RCW 26.09.090
In re Marriage of Marzetta, 129 Wn. App. 607, 120 P.3d 75, review denied 157 Wn.2d 1009, 139 P.3d 349 (2005);
In re Marriage of Estes,
84 Wn. App. 586, 929 P.2d 500 (1997)
The amount of maintenance is limited by need versus ability to pay.
In re Marriage of Foley, 84 Wn. App. 839, 930 P.2d 929 (1997)
“[T]he court is not limited to assessing a minimum amount of maintenance to pay monthly expenses. It may also consider the standard of living attained during the marriage, the ability of one spouse to pay additional maintenance, and the other’s ability to provide for himself or herself.” (Barnett at p. 388)
In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984)
One factor in awarding maintenance is the standard of living experienced during the marriage (effectively overruling prior holdings that maintaining a lifestyle to which one has become accustomed is not a test of need, i.e. Cleaver v. Cleaver, 10 Wn. App. 14, 516 P.2d 508 (1973); Friedlander v. Friedlander, 80 Wn.2d 293, 297, 494 P.2d 208 (1972); Morgan v. Morgan, 59 Wn.2d 639, 369 P.2d 516 (1962)). An acceptable method is equalizing incomes for an appropriate period of time (Estes, Washburn and Bulicek).
RCW 26.09.090
Kenneth W. Weber, 20 Washington Practice, Family and Community Property Law, §34.6 (1997)
In re Marriage of Estes, 84 Wn. App. 586, 593, 929 P.2d 500 (1997);
In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984)