Spousal Maintenance in New York

New York divorces often deal with a topic that has been discussed so much in movies and in television shows that strikes fear in the heart of many people: Alimony. First, it is important to understand that Alimony, Spousal Maintenance, and Spousal Support all pretty much refer to the same thing – a payment from one spouse (a higher earning spouse) to the other spouse (the lower earning spouse) as a means of financial support.  New York family courts will be the final arbiter and decide if spousal maintenance (“alimony”) should be awarded to one of the spouses in a divorce case.

In New York, the courts review a range of factors before issuing an order for spousal maintenance, whether temporary or at the completion of the divorce process. The specific law and statute that governs New York spousal support can found here at New York Family Court Act § 412 and here at New York Domestic Relations Law § 236, but they are also made by the judge hearing the case and taking into account the totality of all facts and circumstances of the divorce case and making a decision based on what she/he deems fair and equitable under those specific circumstances. This is why it is necessary to utilize the skills and experience of New York divorce attorney to fight for – or fight against – claims of spousal support.

How Does a Court Determine if Spousal Maintenance Should be Awarded?

The Court’s decision whether spousal maintenance should be awarded is based on the existing standard of living of the couple at time of divorce as well as the need of the spouse requesting support and the ability of the other spouse to pay support. Spousal maintenance may be awarded for a finite period, or while the party receiving maintenance payments is living. Spousal support can be awarded to either spouse, regardless of gender. The following factors are generally considered by the court in the determination of amount and scheduled duration of spousal maintenance:

  • Marital property. Division of marital property and other major assets are considered significant factors in the distribution of resources during a divorce. Spousal maintenance is calculated according to acquisition of those resources during the marital union and weighed against future assets such as inheritance in the award of spousal maintenance.
  • Length of marriage. The longer the marriage, the more likely a larger spousal maintenance award will be the result of divorce proceedings. This is particularly the case if a spouse requesting maintenance has been the primary caregiver of children or has earned substantially less.
  • Age and health. In cases in which a spouse is comparatively advanced in age or in poor health, spousal maintenance may be larger.
  • Income and earning-capacity. New York courts consider the self-supporting capacity of the spouse requesting maintenance. If the person seeking spousal maintenance does not have the ability to generate enough income to be self-supporting due to age or health factors, the maintenance awarded will be structured to meet the petitioner’s financial needs.
  • Education expenses. If financial independence can be achieved with education, a court may award maintenance for a limited time-period while the requesting spouse pursues objectives that will lead to self-supporting income. This is particularly relevant in cases in which a spouse has been delayed in pursuit of self-supporting activities and educational advancement as result of childbearing, childcare, or a spouse’s business interests.
  • Joint household before marriage. Pre-marital residence as a couple can affect the determination of length of marital union, having impact on the obligation assigned in a spousal maintenance matter.
  • Interference with earning capacity. If the court finds that spousal misconduct in the form of interference with employment has persisted, maintenance will be considered on the grounds of earning capacity limitations.
  • Where the children live. If, due to the children’s young age or ill health, the ability of the custodial parent to work outside of the home is limited, the court must determine whether child support alone is sufficient to enable that person to meet his or her reasonable expenses, as well as those of the children. If not, an additional award of maintenance might be made.
  • Inhibited earning capacity due to family obligation. A spouse meeting the demands of children or other family members requiring home care may be awarded more in maintenance.
  • Age or prolonged absence from the workforce. Job hunting challenges due to age or prolonged absence from the workforce can establish a basis for a maintenance award.
  • Childcare expenses. A custodial parent is often entitled to additional maintenance support to cover the costs of day care, private schooling, and medical expenses.
  • The tax benefit of spousal maintenance is a common consideration in spousal maintenance matters. An income tax deduction promotes higher maintenance support payments as an attractive obligation in some cases.
  • Non-monetary contributions. Non-financial contributions by spouses in a marriage are considered as “work” by New York courts in structuring an equitable and fair maintenance award,
  • Wasteful dissipation of property and other assets. Evidence that a marital asset is no longer in existence due to frivolous spending may be the cause-in-fact for devaluation of a maintenance award.
  • Transfer or encumbrance without mutual assent. Where an encumbrance or transfer of assets is made in contemplation of a separation or divorce action without fair consideration by the other spouse, a maintenance award may be reduced as result.
  • Health insurance. The projected loss or exorbitant cost of health insurance may be a deciding factor in court calculation of a spousal maintenance award. COBRA agreements are considered part of health insurance valuation.
  • Other factors. Any factor a New York court expressly finds to be just and proper in the decision of maintenance award, including special circumstances, can be considered in determining the outcome of the proceeding.

How is Spousal Maintenance Different from Spousal Support?

Spousal maintenance is paid after a divorce is finalized, whereas spousal support is awarded in family court during the divorce process. The New York Family Court Act (FCT) allows for the provision of support prior to divorce. This may be called “temporary support” or “pendente lite”, as it only takes place during the divorce process until a final judgment dissolving the marriage is entered that finalizes the divorce case.

Can Bankruptcy Discharge a Spousal Maintenance Obligation?

Bankruptcy discharge does not provide for exemption from spousal maintenance. Spousal maintenance awards remain in effect after an individual obligor files for bankruptcy. A divorce agreement should include a clause prohibiting discharge of spousal maintenance obligation. A licensed attorney at law experienced at spousal maintenance litigation can provide a divorcing client with the procedural representation required to file a court petition for spousal maintenance.

How Is Spousal Support Calculated?

New York calculates maintenance based on a specific formula depending on the circumstances of the case. Cases that started after January 25, 2016 have a different formula altogether. New York divorce cases that started after January 25, 2016 follow one of these formulas – they are similar, pay attention!:

  • Spousal Maintenance in a Divorce Without Kids:
    • The lesser amount of either formula a. or formula b.:
      • Formula a.: Party paying maintenance income x 30% minus party receiving maintenance income x 20%
      • Formula b.: The combined income of both spouses x 40% minus the party receiving maintenance income
  • Spousal Maintenance in a Divorce With Kids:
    • The lesser amount of either formula a. or formula b.:
      • Formula a.: Party paying maintenance income x 20% minus party receiving maintenance income x 25%
      • Formula b.: The combined income of both spouses x 40% minus the party paying maintenance income

Get the Help You Need in Your New York Spousal Maintenance Case

New York divorce laws are confusing, ever-changing, and can have far reaching impact on your and your family’s life for decades to come. Do not take the issue of spousal support lightly – work with an aggressive but compassionate attorney that knows how to fight to get you the rights and the results you deserve. ContactThe Silverberg Law Firm, P.C. to learn how our office can advocate for your interests during your New York spousal support matter.


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