If you have been “Keeping Up With the Kardashians” on television, you will be interested to know that Kris Jenner filed divorce papers against Bruce Jenner yesterday in Los Angeles Superior Court, citing irreconcilable differences.

The couple have been married for 23 years.  It is the third marriage for Bruce and the second for Kris.  They had no prenuptial agreement.

The split appears to be amicable and the parties have agreed on joint physical and legal custody of their only child who is still a minor, Kylie Jenner.  Neither is asking for alimony.

George and Betty Lou Blake had been married for 37 years. He was 56 and she was 57 when they got divorced. He made $42,500 a year and she made $20,000 a year.

Courts now favor rehabilitative alimony for a set period rather than indefinite alimony, but there are two exceptions. The judge granted Betty indefinite alimony and the appeals court affirmed.

Since George made twice as much as Betty, the judge might have applied the second exception to rehabilitative alimony and given Betty indefinite alimony on the basis of unconscionable disparity.

Instead, the judge applied the second exception, finding that in view of her age and, given the time necessary for further education or training, “I don’t know that there’s a whole lot more that she can do. She’s doing the best she can.”

Blake v. Blake, 81 Md. App. 712, 569 A.2d 724 (1990)

When someone pays alimony they get a tax deduction for it. But the same amount should be included as taxable income on the return of the person receiving alimony. I think most divorce lawyers believed, and cautioned their clients that the IRS computers will automatically detect any variances and flag the returns. It turns out the IRS computers are not that good.

The inspector general for the IRS has issued a report, according to the Washington Times, that the U.S. government loses hundreds of millions of dollars a year in false alimony deductions. The report says that the IRS doesn’t have a system for detecting the false claims. 47 percent of returns filed in 2010 got it wrong said the inspector general.

Most cases involved a deduction for alimony without matching income on the recipient’s return. In other cases, taxpayers did not report who they were paying alimony to or gave a false taxpayer identification number for the recipient. “Apart from examining a small number of tax returns, the IRS generally has no processes or procedures to address this substantial compliance gap,” the report said.

In order to make a fair and equitable alimony award, the divorce court judge must look at all the factors necessary, including the following:

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

Employment is not required, however, if a party is already self-supporting. Mrs. Hull was almost 61 years old and her husband was 66 at the time of their divorce. The wife never worked during the marriage and the husband was retired from the CIA. The parties had both inherited funds and when they sold their home, they each had assets of over one million dollars.

The trial judge found that both parties were self-supporting and therefore no alimony was required. The wife appealed and the appeals court affirmed the ruling of the trial court.

Hull v. Hull, 83 Md. App. 218; 574 A.2d 20 (1990)

Since 1980 the law in Maryland has favored rehabilitative alimony over indefinite alimony. Rehabilitative alimony is for a fixed period. Indefinite alimony is until one of the parties dies or the party receiving alimony remarries.

The purpose of alimony is to make a person self-sufficient and not to award a life- time pension. Nevertheless, the legislature has recognized two exceptions where indefinite alimony might be appropriate.

The first is where the dependent spouse cannot become self-sufficient due to age, illness, infirmity, or disability.

The second is where there will be an unconscionable disparity in the standard of living of the parties after the divorce.

Section 11-106(c) of the Family Law Article, Maryland Code.

Section 11-106 of the Family Law Article of the Maryland Code requires the court to consider certain factors in determining the amount and duration of alimony.  This next series will take a look at the factors one by one.

Alimony Factor #1.  The ability of the party seeking alimony to be partly or wholly self-supporting.

Alimony Before 1980.

Alimony originally was awarded on a permanent basis to a financially dependent spouse who was not at fault for the destruction of the marriage.  The thought was that the financially dependent spouse ought to be able to continue with the same standard of living to which that spouse had become accustomed during the marriage, provided the other party could afford it.  Alimony could be modified in the event of a change in circumstances but basically lasted until one of the parties died or the party receiving alimony remarried.

Alimony Today.

The Governor’s Commission on Domestic Relations Report dated January 18, 1980, changed the concept of alimony in Maryland.  New alimony laws were adopted at sections 11-106 and 11-107 of the Family Law Article.

The court in Holstein v. Holstein described it like this:

Under the present statute, the principal function of alimony is rehabilitation. Thus, when awarding alimony, the chancellor is required to consider not only those factors relating to the financial situation, age and health of each party, their standards of living, the duration of marriage and the contribution of each party to its well being but also the ability of the party seeking alimony to be wholly or partially self-supporting and the time deemed necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment. It is apparent, therefore, that the concept of  alimony as a lifetime pension enabling the financially dependent spouse to maintain an accustomed standard of living has largely been superseded by the concept that the economically dependent spouse should be required to become self-supporting, even though that might result in a reduced standard of living.

There are two exceptions when indefinite alimony should be awarded.  These will be discussed in my next post.

When separated spouses in Maryland and the District of Columbia require the aid of the court to resolve issues of support or custody they know where to file their case – in the local Circuit Court in Maryland and in Superior Court in the District of Columbia. And if they have been separated for less than the period required for an absolute divorce, they can include a request for limited divorce (legal separation in DC) in the support and/or custody suit.

Not so in Virginia. The circuit courts are the trial courts of general jurisdiction, and are the trial courts preferred by lawyers, including family lawyers. But the court with jurisdiction of minors, including custody and support of minors, and support of spouses, is the Juvenile & Domestic Relations District Court (“JDR”). The Circuit Court only has concurrent jurisdiction over these matters if there is a divorce case pending. And, unlike in Maryland and DC, when the spouses have been separated for less than the required period (one year in general, six months with a written separation agreement and no minor children), a complaint for limited divorce is often not an option because in Virginia there aren’t any no fault grounds for limited divorce (called divorce from bed & board or, in Latin, a mensa et thoro ).
In this situation, the spouse needing custody or support relief faces a choice. He or she can:

1. File a petition requesting custody and/or support relief in JDR;

2. Assert fault grounds and file a complaint for divorce from bed and board and for the custody and/or support relief in Circuit Court; or

3. Wait the one year period and then file a complaint in Circuit Court for final divorce (called divorce a vincula matrimonii) on separation grounds and for the custody and/or support relief.
Each of these choices has advantages and disadvantages which I will address in my next post.

There are many divorce cases where only one spouse is employed and there are no significant liquid assets or those assets are all under the control of the employed spouse.

In such cases, the financially dependent spouse can seek an award of pendente lite support.  “Pendente lite” is Latin for “pending the litigation”.  It means temporary support until the divorce trial.

Pendente lite support hearings are short and the only issues considered are need for support and ability to pay.  Some jurisdictions have established guidelines for  pendente lite spousal support.

For example the Fairfax County formula is:

When child support is also payable – monthly spousal support equals 28% of the payor’s monthly gross income minus 58% of the payee’s monthly gross income.

When child support is not payable – monthly spousal support equals  30% of the payor’s monthly gross income minus 50% of the payee’s monthly gross income

Child support is generally determined under the child support guidelines. Those guidelines are also used to determine child support pendente lite.

Virginia Courts can also enter pendente lite orders on maintaining health insurance coverage for a spouse or children, responsibility for debt payments during the case, exclusive use and possession of the family residence during the case, payment of attorney’s fees and other costs of the suit, and custody of the children pendente lite . However, most courts are reluctant to rule on custody pendente lite.  This is because custody matters have scheduling priority and will soon be heard as a final matter so pendente lite relief is not necessary unless there is an emergency.  And the judges do not like emergencies, so if you claim you have an emergency it better be a real emergency.

The Court’s ruling on any issue at a hearing on pendente lite relief can be reviewed and modified at the final hearing.

James Stewart, at age 24, was married with three children, and owned a successful construction business.  He was worth about two million dollars.  Then he met 26 year old Barbara Stewart, who worked at a day care center for minimum wage.  Her only asset was a vehicle worth about $500.  They had an affair, lived together for a year, and eventually married in 1988 after James got his divorce.

Four days before the wedding James and Barbara signed a prenuptial agreement.  Twenty one years later they divorced and Barbara challenged the agreement claiming she signed it under duress, without counsel, without full disclosure, and that the agreement was unfair.

The trial court upheld the agreement and the Maryland Court of Special Appeals affirmed.  The court said that four days was enough time to consult with a lawyer and that it was her choice not to do so.

While the agreement did not disclose an IRA worth $60,000 and it did not list values for the assets nor their total, the court found that the agreement and Barbara’s knowledge of the assets from living with James were sufficient disclosure to let her know she was giving up something significant by signing the agreement.

The court also found that she had not waived alimony nor a marital award in the prenup.  In fact, she settled the divorce for over a million dollars.  So, the court said, the prenup was not unfair.

Stewart v. Stewart, Maryland Court of Special Appeals (October 3, 2013)

Section 11-108 of the Maryland Family Law Article provides:

Unless the parties agree otherwise, alimony terminates on:

(1) the death of either party; or
(2) on the marriage of the recipient; or
(3) if the court finds that termination is necessary to avoid a harsh and inequitable result

In Moore v. Jacobsen, 373 Md. 185, 817 A.2d 212 (2003), the parties agreed that the husband would pay the wife $833.33 in alimony every month and that no court would “have the power to modify” the agreement with respect to alimony. The separation agreement did not mention whether remarriage would terminate the wife’s right to alimony.   The Maryland Court of Appeals said that the agreement only prohibited modification.  For it to prohibit termination, the parties have to “agree otherwise” by expressly stating that the alimony would not terminate on remarriage.  So the court upheld the termination of alimony.

In Bradley v. Bradley, September 13, 2013, Maryland Court of Special Appeals, the husband had agreed to pay the wife $2,233.33 a month in alimony until the death of either party or the remarriage of the wife.  The agreement said it these provisions were non-modifiable by the court.  The husband petitioned to terminate alimony to avoid a harsh and inequitable result because he had become permanently disabled, had no income, and filed for bankruptcy.  He pointed out that the agreement did not expressly prohibit termination to avoid a harsh and inequitable result.

The court denied termination.  It said that the parties stated the reasons that alimony could be terminated, namely death or remarriage.  They could have included harsh and inequitable result but they chose not to do so.  And they agreed the court could not modify this.