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Waive Or Hold Open Maintenance?


The other day in a blog I wrote about holding open child support. In every divorce case, there comes the issue at time of settlement as the final divorce approaches, where one party is not going to be paying spousal support to the other, whether maintenance should be “held open” or “waived and terminated” as part of concluding the case. In marriages of short duration, perhaps less than 10 years, and the parties’ income is similar, they both have good jobs and can support themselves, it would not be inappropriate to consider a waiver of maintenance. One word of caution however when it comes to waiving maintenance. Once waived, it is waived forever. You cannot come back into court if your circumstances change where support would be needed. Once waived, it is terminated and gone forever, so approach the waiver with great caution and consideration.

The other alternative is a “hold open” to maintenance. This means that you have the right to go back into court in the future to request maintenance, if a need arises. You would still need a legal showing that there has been a significant and substantial financial change in the circumstances to warrant the court to consider the modification, but at least you would have the right to do so. You can’t just change your mind and decide you want maintenance. A “hold open” on maintenance is particularly important in a longer term marriage. Any marriage of more than 20 years is commonly referred to as a “long term marriage,” and in a situation where neither party may be paying spousal support because their economic circumstances may be the same, and considering their age, health and other factors, a “hold open” on maintenance should be the preferred course of action. A “hold open” on maintenance can either be a limited term, or it can be an indefinite term. The answer to that also depends on the length of the marriage. On a marriage of less than 15 years, half the length of the marriage may be an appropriate time frame for holding open spousal support. On a marriage of more than 20 years, it would be appropriate to have an indefinite hold open on maintenance, given the length of the marriage. Also consider that if you do agree to a limited term hold open on maintenance or where there is a limited term maintenance order in effect, you can apply for an extension beyond the termination date, provided however, that your motion to ask for continued maintenance or a continued hold open, is filed with the court prior to the cutoff date. If filed after the termination date, you waive the right to request the extension.

In cases where neither party are going to be paying spousal support to the other, one must consider whether it is appropriate to waive maintenance or have it held open. This is a very important issue that needs to be discussed with your divorce lawyer, before making the decision to waive, and perhaps, giving away valuable rights that you can never get back.

If you have questions on whether you should waive maintenance or have it held open as part of your divorce case, it is important for you to understand your rights. Contact the attorneys with over 34 years of family law experience by calling Karp & Iancu, S.C. today.

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