When can a Spouse’s Ability to Earn Income be Considered for Spousal Maintenance?

The Court will consider a spouse’s ability to earn income and be self-supporting when considering spousal maintenance. However, look at the facts surrounding a recent appellate case:

  • Husband and Wife are both 52 years old.
  • The parties were married for 30 years.
  • The first five years of the parties’ marriage wife worked as a special education teacher.
  • After that, wife worked part time as a fitness instructor, earning a gross annual income of $3,000.
  • Husband earned a gross annual income of $525,000.

The district court first found that while wife may have the ability to still earn $36,000 a year as a special education teacher, she did not quit her job “in bad faith” so the court would not consider this income in determining a spousal maintenance award.

However, the appellate court disagreed and found that there did not need to be bad faith in order for wife’s prior income to be considered in determining the spousal maintenance award. The appellate court remanded the case to the district court to reexamine its determination of spousal maintenance for a possible step-down from the original maintenance award. (Passolt v. Passolt).

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