The amendments to the statute also include a schedule for determining how long maintenance should be paid. The length of maintenance varies with the length of the marriage. The longer the marriage, the longer the maintenance. Although the durations provided are only recommended (“advisory”) and not binding nor even presumptive, they are helpful in planning a case, whether for settlement or trial. The first durational level applies to marriages of 0 through 15 years. Maintenance in this level is recommended for 15% to 30% of the duration of the marriage. The next level applies to marriages lasting 15 through 20 years. In this level the recommended duration is 30% to 40% of the duration of the marriage. The upper level is for marriages exceeding 20 years in length, for which the recommended duration of maintenance is 35% to 50% of the length of the marriage.
In keeping with the advisory nature of the durational tiers, the statute also requires the court, when determining the duration of maintenance, to consider in its written decision the same factors used in deviating from the presumptively correct maintenance amount. A court must do this regardless of whether it chooses to use the advisory duration schedule.
Since maintenance is designed to rehabilitate the payee’s earning capacity, maintenance can continue indefinitely where the payee is completely disabled, incapacitated, or it is unlikely that the payee will be able to rehabilitate his or her earning capacity enough to be self-supporting. Sometimes the duration of maintenance is linked to the retirement of the payor, if the retirement eligibility age can be ascertained at the time of the court’s decision. The availability of retirement assets including equitable distribution of the payor’s pension payment can also influence the duration of a maintenance award. In all cases, maintenance will terminate upon the death of either spouse, the re-marriage of the maintenance recipient, or the recipient holding him or herself out as the spouse of the another person even though not actually married.
Having a formula to determine the amount of maintenance makes settling cases easier. Unless there is a really good reason to challenge the presumptively correct amount and recommended duration of maintenance produced by the statutory formula, the parties can usually settle maintenance out of court.