The question often arises, is one spouse entitled to share in the other spouse’s post separation increases in income?

This will largely depend on whether the spouse’s claim to spousal maintenance is based on a needs based or compensatory spousal maintenance model. Compensatory spousal maintenance is awarded to compensate a spouse for missed career opportunities because of the marriage. Needs based support is awarded to allow a spouse to continue to enjoy the standard of living they experienced during the marriage.

Post separation increases in income typically will be shared only if the spousal maintenance is compensatory.

The reasoning behind this is that both spouses adopted roles in the marriage that allowed only one of the spouses to advance their careers. Put another way they both invested in one career and they typically will share any post separation increases in income resulting from that single career.

If post separation increases in income are the result of a post separation career change, the increased income resulting from that new career will typically not be available for increased spousal maintenance.

If a spouse’s income decreases post separation, spousal maintenance may also decrease but not if the decrease is the result of a voluntary decision to work less and reduce one spouse’s income.

Deborah A. Todd