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When Does the Court Award Indefinite Alimony?

Indefinite Alimony in Maryland

A question that our family law clients often ask is whether the court is likely to award them (or their spouse) indefinite alimony. At least in Maryland, courts aim to limit the duration of alimony. The general approach is to only award spousal support for the amount of time that the court deems necessary for the party to attend school or take other measures to become self-sufficient.

However, there are a few instances when a court is likely to award indefinite alimony. This type of spousal support does not end after only a few years. Instead, it continues indefinitely, until either spouse dies, the recipient spouse remarries, or a court determines that a modification of alimony is warranted.

What is Indefinite Alimony & Why Do Courts Try to Avoid It?

Indefinite alimony is spousal support with no predetermined end date. It terminates only when either party dies, the spouse receiving the alimony remarries, or a court (typically when the paying spouse files a complaint to modify alimony) finds that there has been a material change in circumstances warranting a modification.

In the past, prior to women’s progress in the workplace, indefinite alimony was the norm. Since it was difficult for women to enter the workforce, “the principal function of alimony once had been maintenance of the recipient, dependent spouse’s standard of living.” Whittington v. Whittington, 172 Md. App. 317, 335 (2007).

Obviously, things are different these days. And, with social change comes changes in the law and how laws are applied. Nowadays, the courts have made it clear that the focus is on giving a dependent spouse time to find a way into the workforce in order to become independent:

The preference for fixed-term alimony stems from “the conviction that ‘the purpose of alimony is not to provide a lifetime pension, but where practicable to ease the transition for the parties from the joint married state to their new status as single people living apart and independently.’ ”

Simonds v. Simonds, 165 Md. App. 591, 605 (2005) (quoting Tracey v. Tracey, 328 Md. 380, 391 (1992)). Notice, however, the use of the phrase “where practicable.” This implies that there may be situations where indefinite alimony is still warranted.

When is Indefinite Alimony Awarded?

Maryland’s legislature has enacted a statute to maintain indefinite alimony as part of the state’s family law jurisprudence. The law, Md. Code, Fam. Law § 11-106(c), provides:

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.

So, in order to make an accurate assessment of a client’s chances of obtaining indefinite alimony, a Maryland divorce lawyer must be aware of the appellate case law relating to these two concepts.

Age, Illness, Infirmity or Disability

Disability is a pretty straightforward concept. If a person has medical records showing that they suffer from a disability, then the battle in court revolves around whether the disability prevents the person from seeking employment. However, it should be noted that a party has a burden to prove the existence of a specific, identifiable disability, and then further argue convincingly why that disability prevents them from entering the workforce. This will often require expert testimony and medical records. For example, it is insufficient to simply tell the court that you are receiving disability benefits. Hiltz v. Hiltz, 213 Md. App. 317, 344 (2013) (“Further, the SSA letters Melissa submitted to the circuit court provided no insight regarding the nature, extent, severity, or permanence of her physical or mental impairment.”).

Age, illness and infirmity are more nebulous concepts. Fortunately, the case of Long v. Long, 129 Md. App. 554 (2000) provides some guidance. There, the wife was 52 and suffered from “agoraphobia, panic attacks, and depression.” Id. at 581. In other words, she would often suffer such a degree of anxiety from being in open places or around strangers that the stress would trigger a panic attack. This made it difficult, and sometimes impossible, to “engage in normal employment, social affairs, and such everyday activities as driving a car for any significant distance or time.” Id. at 560.

Although the trial court found these facts to be significant, it only awarded rehabilitative alimony for four years. The wife appealed, and the appellate court reversed the lower court, holding that it abused its discretion when it refused to conclude that these facts warranted indefinite alimony.

Unconscionable Disparity in Income

Appellate holdings in family law cases are often vague and case specific. This is the nature of an area of law that revolves mainly around subjective legal standards, such as what is equitable or what is encompassed within a judge’s reasonable discretion. Sometimes, however, the Court of Appeals graces practitioners with clear guidelines. This happens to be the case with the concept of unconscionable disparity in income.

Essentially, a spouse’s chances of qualifying for indefinite alimony increases as the other spouse’s standard of living becomes greater. The issue, of course, is how much greater of a living standard must one spouse enjoy on their own in order for the difference to be deemed “unconscionable.” Maryland’s highest court has offered the following straightforward guidance:

There are several cases in which Maryland appellate courts found unconscionable disparity based on the relative percentage the dependent spouse’s income was of the other spouse’s income. See Tracey, 328 Md. at 393, 614 A.2d at 597 (28 percent); Caldwell v. Caldwell, 103 Md. App. 452, 464, 653 A.2d 994, 999 (1995) (43 percent); Blaine v. Blaine, 97 Md. App. 689, 708, 632 A.2d 191, 201 (1993), aff’d on other grounds, 336 Md. 49, 646 A.2d 413 (1994) (23 percent); Rock v. Rock, 86 Md. App. 598, 613, 587 A.2d 1133, 1140 (1991) (20-30 percent); Broseus v. Broseus, 82 Md. App. 183, 186, 570 A.2d 874, 880 (1990) (46 percent); Bricker v. Bricker, 78 Md. App. 570, 577, 554 A.2d 444, 447 (1989) (35 percent); Benkin v. Benkin, 71 Md. App. 191, 199, 524 A.2d 789, 793 (1987) (16 percent); Zorich v. Zorich, 63 Md. App. 710, 717, 493 A.2d 1096, 1099 (1985) (20 percent); Kennedy v. Kennedy, 55 Md. App. 299, 307, 462 A.2d 1208, 1214 (1983) (33 percent). Although we do not adopt a standard that unconscionable disparity exists based on a particular percentage comparison of gross or net income, the relative percentages in these cases offer some guidance here in assessing whether the amount of the indefinite alimony award alleviated adequately the unconscionably disparate situation found to exist in the present case.

Solomon v. Solomon, 383 Md. 176, 198 (2004). So, basically, the persuasiveness of a person’s argument in favor of an unconscionable disparity finding is correlated with the extent to which their income is less than 46% of their spouse’s income.

“May” & Fairness Considerations

Falling into one of the above factual scenarios does not guarantee an award of indefinite alimony. There is still the issue of fairness. Notice that Md. Code, Fam. Law § 11-106(c) uses the word “may.” That means that a judge can, but is not required, to award indefinite alimony if a person falls into any of the above factual scenarios. The court must still consider whether an award of indefinite alimony would actually be fair in light of other relevant circumstances. Such other factors are outlined in § 11-106(b).

A case that illustrates this concept is K.B. v. D.B., 245 Md. App. 647 (2020). There, the parties’ standards of living were vastly disparate even before they were married. The trial court relied on this fact in only awarding rehabilitative alimony, reasoning that there had not been a net change in living standards and so it would be unfair to grant the wife indefinite alimony. Id. at 674-75. The appellate court disagreed with this approach because of the length of time the parties had been married.

The lower court relied on the case of Roginsky v. Blake-Roginsky, 129 Md. App. 132 (1999), which held that indefinite alimony was not appropriate where the parties’ pre-marital standards of living were just as disparate as their post-marital standards of living. K.B., 245 Md. at 675. But, the appellate court in K.B. pointed out that Roginsky made sense only because the parties there had been married for a very short time – about five years. Id. Meanwhile, the parties in K.B. had been married for almost 17 years. Id. Since the parties had been married for so long, it did not make sense to look at their pre-marital situations from almost two decades prior.

In other words, even though an unconscionable disparity in living standards existed in Roginsky, it was not fair to award indefinite alimony because the parties had not been married long enough (less than five years) to become dependent on their joint arrangement. On the other hand, it was fair to grant indefinite alimony to the wife in K.B., even though the parties’ disparate living standards were the same as they were before they were married, because after almost two decades it made sense to conclude that the wife had become dependent on the living arrangement.

Summary

Courts generally disfavor indefinite alimony, and instead aim to encourage the parties to become self-supporting. Nevertheless, a court may be inclined to award indefinite alimony when there is persuasive evidence that a party cannot reasonably be expected to enter the workforce or achieve a standard of living comparable to the standard enjoyed during the marriage. These situations occur where a party’s age, illness, infirmity or disability prevent them from working, or where the dependent spouse earns at least 46% less than the other spouse.

But, even if you fall into one of these two scenarios, the law requires a court to further analyze whether an award of indefinite alimony would be fair. A key factor in this determination is the length of the marriage. If the parties have been married for 20 years or more, and if one of the above two scenarios applies, then it is highly likely that the dependent spouse will obtain indefinite alimony (unless of course the dependent spouse did something heinous that would render such an award unfair despite the existence of the Md. Code, Fam. Law § 11-106(c) factors and lengthy marriage duration).

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