Category Archives: Indefinite Alimony

Rarely awarded. Requires significant disparity between the post divorce incomes marriages of significant duration. May consider factors such as fault and adultery.

Indefinite Alimony: Defined

Indefinite Alimony in the State of Maryland: Defined

There are three different types of alimony (also known as spousal support) in Maryland. Those three (3) types are: Pendente-lite alimony (temporary alimony), Rehabilitative alimony, and Indefinite alimony. In this article I will discuss “Indefinite Alimony.”

Generally:

In a divorce case, the Maryland Circuit Courts (family law courts) have jurisdiction and authority to grant a former spouse alimony for an indefinite period of time. Like pendente-lite and rehabilitative alimony, that judicial authority is set forth in the Maryland Annotated Code, Family Law Volume Title 11, Alimony.

When a Maryland judge orders rehabilitative or indefinite alimony he/she decides both the amount of the alimony and the duration of the alimony at the same time. Both rehabilitative and indefinite alimony can only be ordered as part of the final divorce. Therefore, these two forms of alimony do not take effect until at, or after, the date of the divorce.

Occasionally, the Maryland courts will order the indefinite alimony to take effect at the time of divorce. That usually only happens where the dependent spouse simply cannot be expected to obtain employment due to illness, infirmity or age. More often, the Maryland judge will order that the indefinite alimony takes effect at the end of some rehabilitative alimony period. Frederick, Maryland divorce lawyers refer to such an award as “compound alimony.”

The Amount of Indefinite Alimony

The criteria which the Maryland family court will use in crafting the amount of indefinite alimony are the same criteria which were covered under rehabilitative alimony. They are included here for the sake of clarity and are available in detail at Family Law Code Section 11-106.

Md. FAMILY LAW Code Ann. § 11-106 (2012)

§ 11-106. Award — Determination of amount and duration

(a) (omitted here) * * * * * * * * * *

(b) Required considerations. — In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including:

(1) the ability of the party seeking alimony to be wholly or partly self-supporting;

(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;

(3) the standard of living that the parties established during their marriage;

(4) the duration of the marriage;

(5) the contributions, monetary and non-monetary, of each party to the well-being of the family;

(6) the circumstances that contributed to the estrangement of the parties;

(7) the age of each party;

(8) the physical and mental condition of each party;

(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;

(10) any agreement between the parties;

(11) the financial needs and financial resources of each party,

Duration of Indefinite Alimony

Ok so, we see above that a determination of the amount of the indefinite alimony employs the same analysis as determining the amount of rehabilitative alimony. Thus, what differentiates indefinite alimony from rehabilitative alimony is that an award of indefinite alimony is not for a fixed period of time, but is instead indefinite in its duration.

Before a Maryland family court judge can award indefinite alimony he/she must find that the dependent spouse meets one or both of the criteria spelled out in Maryland Family Law Code Section 11-106(c). That section is included here for clarity and it immediately follows the foregoing criteria under 11-106(a)-(b)

Md. FAMILY LAW Code Ann. § 11-106 (2012)

§ 11-106. Award — Determination of amount and duration

(a) (above) * * * * * * * * * *

(b) (above) * * * * * * * * * *

(c) Award for indefinite period. — The court may award alimony for an indefinite period, if the court finds that:

(1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or

(2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.

As a practical matter, just because a Maryland family law court has the authority to grant indefinite alimony, does not mean that the Maryland family court will grant indefinite alimony.

In Maryland, our supreme state court the Maryland Court of Appeals guides the hand of family court judges in applying the standards contained in the aforementioned statutes. At all points in any discussion of indefinite alimony we must keep it absolutely and positively clear in our minds that indefinite alimony is the exception and not the rule.

The Age Illness or Infirmity Test

The first statutory criterion which will entitle a dependent spouse to indefinite alimony is evidence that: due to age, illness, infirmity, or disability, the party seeking alimony (dependent spouse) cannot reasonably be expected to make substantial progress toward becoming self-supporting(.) Md. FAMILY LAW Code Ann. § 11-106 c (1)

Age might persuade a judge of the propriety of indefinite alimony if the dependent spouse is at an age unlikely to obtain significant employment? There is a reported case that an award of alimony to a spouse age 61 was appropriate but there are no other reported cases that address a specific age.

Illness, infirmity or disability might persuade a judge to award indefinite alimony. In my experience Maryland family law judges won’t believe that a person’s illness or disability merits indefinite alimony unless a person has been determined to have a disability prior to court.

For example: a Maryland judge may determine that a person is legally “disabled” because they receive social security or some other form of disability insurance. Otherwise you have a trial within a trial and the judge will likely reserve (hold off) on a decision of indefinite alimony until the dependent spouse qualifies for social security disability payments.

The Unconscionable Disparity Test

The second statutory criterion which will entitle a dependent spouse to indefinite alimony is evidence that: even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.

The principal flows from the idea that a spouse is entitled to indefinite alimony if the difference in the respective parties standards of living is EXTREMELY different. For example wealth versus welfare (that’s mine by the way so don’t claim it:)

All kidding aside, unconscionability is in the eyes of the Maryland judge. There is just not a lot more guidance on what it is. Perhaps one could think of a decision on unconscionability as an analog of a Maryland judge defining art. It eludes a specific definition, but he/she probably knows it when they see it? That example is not mine. It is from the Hon. John Fader, a recognized expert in Maryland Family Law.

In the real world if the wife can only afford to drive a Kia and the husband drives a Mercedes that’s probably not “unconscionable.” If, on the other hand, the wife drives a Bentley and the husband takes the bus, that’s probably going to be seen as unconscionable.

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