Typically, this is offered when one spouse earns significantly more than the other. Usually, this type of support is temporary, though a judge may determine it should be indefinite if the lesser earning spouse is disabled or unable to return to work for other reasons.

Whether spousal maintenance is permanent or temporary, parties may request modification or even termination when there is a material change in circumstance, such as remarriage. However, the 1994 Indiana Court of Appeals case of Roberts v. Roberts was clear in establishing the fact that spousal maintenance is not automatically terminated upon remarriage. There still needs to be proof presented by the moving party that the marriage means a significant change in the former spouse’s ability to support himself or herself.

This issue was weighed against recently by the Indiana Supreme Court in Gertiser v. Gertiser. more

According to court records, parties involved were married for 25 years before divorcing in 2007. At the time of their divorce, wife took home approximately $11,000 a year in Social Security Disability payments and meager earnings doing work-at-home medical transcription. Husband, meanwhile, earned $145,000 annually.

Wife suffered from disabilities related to her sight, and since 1998, her eyesight degenerated to the point that present day, she is effectively blind. She can do some reading with materials an inch from her face, but cannot drive and her ability to support herself is materially affected. Family court ordered husband to pay wife $1,180 a month in support.

In the years following that decision, both husband and wife remarried. Upon learning of wife’s remarriage, husband petitioned trial court for termination of spousal benefits, arguing the marriage created a substantial and continuing change in her financial conditions that made any further support by him unreasonable. He asserted her husband brought substantial assets into the marriage and had a duty to support her. He also asserted his ex-wife’s occupational skills had been advanced with assistive technology.

Trial court, however, refused this request. Judge stated the original divorce settlement with spousal maintenance was not predicated on wife being totally incapable of working, and neither her disability nor potential earning power had since improved. Also, while ex-husband’s income had increased, ex-wife’s minimal income was unchanged. Since her remarriage, the only real thing that changed was that she no longer needed to borrow money from her father to pay her monthly mortgage.

Further, the court stated that remarriage alone isn’t enough to establish a substantial change in circumstances. Trial court denied the request and ordered ex-husband to pay ex-wife’s $7,000 in attorney’s fees.

The Indiana Court of Appeals, however, reversed, finding the marriage to a man with significant means amounts to a substantial change in ex-wife’s ability to support herself. The court also reversed the award of attorney’s fees, finding there was no disparity in resources between the two parties and in fact, ex-wife had more resources available to pay attorney’s fees than the ex-husband did.

However, the Indiana Supreme Court disagreed and affirmed the trial court’s decision. While the new husband did technically earn more than ex-husband and brought substantial resources to the marriage, much of that money was used for supporting his ex-wife, paying child support and paying college tuition for his older children.

The court took care to note ex-husband was not requesting a mere modification of the original agreement, but termination of it altogether. In weighing all relevant factors, the court noted any change in ex-wife’s circumstances was not of a magnitude that it was unreasonable to leave the maintenance order in place.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Gertiser v. Gertiser, Nov. 10, 2015, Indiana Supreme Court

More Blog Entries:

Carmer v. Carmer – Prenuptial Agreements, Personal Injury Annuities and Property Division, Nov. 20, 2015, Indiana Divorce Lawyer Blog

Researchers analyzed a longitudinal study of more than 10,000 people – and some of their siblings – beginning in 1957. From this group, study authors identified 190 parents of biological children with developmental disabilities, as compared to 7,250 parents of children without disabilities. What they discovered was that the rate of divorce was about the same for both groups – 1 in 5. However, for parents of children with no developmental issues, risks of divorce were lowest with just one child, and increased with each subsequent child. This was not true though for parents of children with disabilities.

What this suggests is that other children may provide an important support and coping system in caring for a developmentally disabled child, researchers say. more

However, there have been previous studies to suggest divorce rates are higher for parents of older children and adolescents with specific conditions, like autism. Researchers at the University of Wisconsin-Madison found that parents of children with autism had a 24 percent chance of divorcing, compared to other parents, who faced a 14 percent chance of divorce.

Many times, parents of special needs children face intense daily demands, and the marital relationship isn’t the primary focus. That can have long-term implications.

In these situations, the decisions that must be made and the specifics of the Indiana divorce agreement can be more complex because it must take into account the needs and responsibilities for that child. Courts will look closely at the best interests of the child. There is no singular definition to that term, as it’s taken on a case-by-case basis.

Depending on the nature and scope of the disability, the American Bar Association has identified issues that may need to be addressed to ensure the child’s needs and best interests are met and advanced include:

• Visitation arrangements
• Educational decision-making
• Transition between homes
• Medical and health care needs
• Therapy and support services needs
• Childcare arrangements and costs
• Health insurance coverage

Occasionally, it happens that both parents agree on these issues, and all that’s necessary is for the court to formalize that agreement. However, in many cases, parents may disagree on the right approach or the amount of parenting time or the level of involvement in critical education and health care decisions.

It’s important that the final divorce decree be clear with regard to things like how decisions will be shared and how parents will resolve issues when they come to an impasse. This will help to ensure that necessary services to the child won’t be delayed any longer than necessary.

As the children get older, parents should have some outline of how they plan to work together to explore further education, training, employment, independent living and other goals. Children with special needs need both of their parents just as much after the divorce. Working out a plan that is flexible but clear is important.

In cases where disabilities are severe, parents may need to discuss elements such as estate planning, Social Security benefits for the child and all available health benefit resources.

For many of these families, co-parenting will be a lifelong endeavor. Both parents should ensure they are adequately represented.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

The Relative Risk of Divorce in Parents of Children With Developmental Disabilities: Impacts of Lifelong Parenting, November 2015, American Association on Intellectual and Developmental Disabilities

More Blog Entries:

Carmer v. Carmer – Prenuptial Agreements, Personal Injury Annuities and Property Division, Nov. 20, 2015, Hammond Divorce Attorney Blog