Also known as: separate maintenances · separate support
Written by attorneys · grounded in primary & secondary sources — see below
A payment of support made by one spouse to the other when the spouses live separately but remain married. The payment is typically ordered by a court to enforce the ongoing support obligation without dissolving the marriage or permitting remarriage.
Solomon Silver and Selena Singh obtained a decree of separate maintenance after living apart for two years. Their child was born 250 days after entry of the decree. Under the applicable statute the decree triggers the presumption that Solomon is the child's parent because the birth occurred within the statutory window following termination of cohabitation by separate maintenance.
Samuel Soto refused to provide funds for household expenses after moving out of the marital home. Samantha Stone petitioned for separate maintenance. The court ordered monthly payments because the spouses remained married and Samantha demonstrated need while Samuel had the ability to pay.
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Stephen Shaw sought separate maintenance after leaving the marital residence. The court examined whether his conduct barred relief under equitable principles. Because the doctrine of unclean hands applies flexibly to separate maintenance claims, the court weighed the total circumstances before deciding whether to award support.
Sean Steele obtained an ex parte divorce in another state while subject to a prior separate maintenance decree. The original state continued to enforce the maintenance order because separate maintenance survives a foreign divorce that does not adjudicate support rights.
Sterling Manufacturing's CEO and his spouse litigated separate maintenance in one state. After the spouse obtained a divorce in another state, the first court examined whether the maintenance decree remained enforceable. The subsequent divorce did not automatically terminate the prior support order.
Separate maintenance enforces the support obligation while the spouses remain married and live apart. It does not end the marriage or permit remarriage, unlike a divorce decree that dissolves the marital status.
Courts generally require the spouses to live separately and apart without fault by the petitioning spouse. Living under the same roof in separate rooms usually defeats a separate maintenance claim.
An action for separate maintenance is not maintainable after entry of a divorce decree. The prior order may survive for enforcement purposes depending on the jurisdiction and whether support rights were adjudicated in the divorce.
Courts consider the need of the requesting spouse and the ability of the other spouse to pay, including income, earning capacity, and the circumstances that led to the separation.
In some states a spouse may seek separate maintenance at any time without initiating a dissolution proceeding. Other jurisdictions tie the remedy more closely to separation or pending divorce actions.
…certif. den. 23 N.J. 363 (1957), while the court stated that the doctrine of unclean hands may bar a cause of action for separate maintenance, it also observed that this defense was an aspect or application of the broader equitable principle that "he who seeks equity must do equity"; hence, the defendant in such an action could…