A woman who remarried and now has substantial income and assets as a result of that marriage is no longer entitled to spousal maintenance, the Indiana Court of Appeals ruled Wednesday.
When Kevin Gertiser and Anne Stokes divorced in 2007, he was ordered to pay her $1,182.50 a month in maintenance. Stokes is blind, receives $940 a month in Social Security disability income and works part-time as a sales person making less than $1,200 a year. She remarried in December 2012 and her new husband earns $163,800 per year, and they share bank accounts and have finance assets in excess of $600,000.
Once she remarried, Gertiser filed a petition to terminate the spousal maintenance, claiming Stokes now has the means to support herself. The trial court denied the petition, finding her personal earning ability and incapacity had not improved since the divorce. It also ordered Gertiser to pay $7,000 in Stokes’ attorney fees.
Spousal maintenance does not automatically terminate upon a remarriage, the Court of Appeals noted, but due to her remarriage, Stokes’ financial resources have substantially changed based on Indiana’s “one-pot” theory of martial possessions.
“Although the trial court is correct that Anne’s ability to earn income has not changed, the court abused its discretion by denying Kevin’s petition to terminate spousal maintenance because it did not consider the substantial income and assets now available to Anne pursuant to her marriage to Paul. Accordingly, the trial court should have terminated the spousal maintenance. Additionally, following the statutes regarding modification of child support, modification may be retroactive to the date of filing the petition,” Judge Melissa May wrote in In Re: The Marriage of Gertiser; Kevin Gertiser v. Anne Stokes (formerly Gertiser), 29A02-1401-DR-43.
The judges reversed the order requiring Gertiser to pay toward Stokes’ attorney fees, noting that she now has more resources available to pay attorney fees than does Gertiser. There is no longer a wide disparity in their incomes. The case is remanded so that the trial court may terminate the maintenance retroactive to the notification of the petition on Stokes or her agent.