Also known as: separate maintenance · spousal maintenance without divorce
Written by attorneys · grounded in primary & secondary sources — see below
A common law action in equity that permits one spouse to obtain financial support from the other without terminating the marriage. The action rests on the continuing duty of spousal support and is available when one spouse demonstrates need and the other has the ability to pay. Courts determine the amount of support by examining the parties' circumstances, including the requesting spouse's need and the paying spouse's resources.
Select any source to read its text and confirm it supports the definition.
Stella Shapiro and Seth Shapiro obtained a decree of separate maintenance without divorce after five years of marriage. Their child was born 240 days after the decree. Under the applicable parentage statute, Seth is presumed to be the child's parent because the birth occurred within 300 days of the separate maintenance decree. The presumption may be overcome only through a later adjudication.
Serena Soto obtained a New York separate maintenance decree requiring Stephen Shaw to pay monthly support. Stephen later obtained a Nevada divorce. Serena seeks enforcement of the New York support order in New York court. The prior separate maintenance award survives the foreign divorce and remains enforceable.
Sierra Santos left her husband and moved to another state. She filed an equity action for separate maintenance without divorce seeking support. The court exercised jurisdiction because the claim for alimony is an equitable proceeding independent of any divorce action. The husband appeared and contested the amount but not the court's authority to award support.
Skylar Sullivan obtained a separate maintenance decree in State A that included support payments. Her spouse later secured a divorce in State B. Skylar seeks recognition of the support order in State B. The separate maintenance award receives full faith and credit and continues in force despite the later divorce.
A spouse may petition for separate maintenance at any time when support is needed and the other spouse has the ability to pay. The action does not require a pending separation or divorce proceeding in some jurisdictions. Courts evaluate need and ability to pay based on the parties' circumstances, including any career sacrifices made during the marriage.
Supporting sources
A decree of separate maintenance without divorce triggers the parentage presumption when a child is born not later than 300 days after the decree. The presumption arises even though the marriage remains intact. It may be overcome only by adjudication or a valid denial of parentage.
…to rest on three independent grounds: (1) New York may, consistently with the Full Faith and Credit Clause, hold that a prior separate maintenance decree of one of its courts survives a decree of divorce within the scope of enforceability of the rule in Williams v. North Carolina , 317 U. S. 287, whether such divorce is granted in…
…peace against her husband, and it was necessary that she should live apart as incidental to that, the chancellor will allow her separate maintenance
…1, residing at a house owned by him there. On February 25, 1943, the Supreme Judicial Court of Massachusetts affirmed the separate maintenance
…spouse (or former spouse) of such individual, and (subject to and in accordance with State law) includes but is not limited to, separate maintenance
…(Code Civ. Proc., 597) to plaintiff's complaint for prospective and retroactive enforcement of defendant's obligations under a separate maintenance
Supporting sources
A prior separate maintenance award may survive a later divorce obtained in another state. The support obligation continues unless the divorce court expressly modifies or terminates it. Full faith and credit principles determine whether the maintenance order remains enforceable.
Support covers living expenses and necessaries such as housing, food, and education costs that advance a child's development. Courts consider the requesting spouse's demonstrated need arising from workforce absence and the paying spouse's total earning capacity. Public alternatives may affect whether a private expense qualifies as necessary.