Court must consider division of marital property before ordering spousal maintenance (alimony); Factors that determine amount of spousal support.

In a recent ruling from the Court of Appeals, Husband appealed the trial Court's decision granting maintenance to the Wife, claiming, among other things, that the Court did not consider the Wife's award of marital property, and the ability to earn income from it, in its maintenance determination. The Court of Appeals agreed, remanding the case back to the trial court for consideration of that issue.

In a proceeding for divorce, a court may award maintenance to a spouse “only if it finds the spouse seeking maintenance: (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment ….”

After determining a spouse’s reasonable needs, the court next considers whether the spouse lacks sufficient property, including marital property apportioned to her, to provide for these reasonable needs, or is unable to support herself though appropriate employment

Although the trial court stated it determined the maintenance award “pursuant to Section 453.335,” the court failed to consider fully whether Wife could provide for her needs through use of property, including the marital property apportioned her in the dissolution. The court awarded Wife $282,540 in marital assets, including $260,500 in marital and nonmarital IRAs and retirement accounts. While a spouse is not required to deplete or consume his or her portion of the marital assets before being entitled to maintenance, a court must consider whether the spouse can earn income from his or her share of the marital property. “Failure to consider the recipient spouse’s reasonable expectation of income from investment of the marital property constitutes error.” The trial court may, after consideration, include or exclude income attributable to retirement and IRA accounts awarded as marital property in the calculation of maintenance; however, the court must first consider such income.

With regard to the calculation of the amount of maintenance, once the court determines a spouse is entitled to maintenance, the court shall order an amount it deems just, after considering all relevant factors, such as: (1) the financial resources of the party seeking maintenance, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) the comparative earning capacity of each spouse; (4) the standard of living established during the marriage; (5) the marital and nonmarital property apportioned to each party in the dissolution; (6) the duration of the marriage; (7) the age and physical condition of the spouse seeking maintenance; (8) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; (9) the conduct of the parties during the marriage; and (10) any other relevant factors. The trial court has considerable discretion in determining the amount of the maintenance award.