SPOUSAL SUPPORT (MAINTENANCE)

In New York, spousal support (commonly referred to as “alimony”) is called “maintenance.”  The court may order one spouse to pay maintenance to the other spouse based on a number of statutory factors.  The court is required to consider those factors in formulating its award of maintenance when the final judgment of divorce is entered.  While the divorce is pending, however, the court may enter a temporary order.  New York law has changed recently to make it easier for the court to calculate a temporary maintenance award.

Temporary Maintenance
While the divorce is pending (also referred to as the “pendente lite” period), the court may order one spouse to pay the other an amount of money for temporary maintenance based on a simple statutory formula.  Domestic Relations Law Section 236-B(5-a).  The court is required to conduct statutory calculations to arrive at the guideline amount of temporary maintenance as follows:

Calculation A:
30% of Payor’s income minus 20% of Payee’s income;
Calculation B:
40% of combined income minus Payee’s income.

The guideline amount is the lesser of calculation A and calculation B or zero if calculation B is less than or equal to zero. 

For purposes of applying the formula, income is capped at $500,000. The court may consider income over $500,000, however. DRL 236-B(5-a)(c)(2)

The guideline amount for temporary maintenance may be adjusted in a proper case. If the court finds the formula approach to be unjust or inappropriate, the court may deviate from the formula based on the following list of factors contained in the statute:
(a) the standard of living of the parties established during the marriage;
(b) the age and health of the parties;
(c) the earning capacity of the parties;
(d) the need of one party to incur education or training expenses;
(e) the wasteful dissipation of marital property;
(f) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(g) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(h) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(i) the availability and cost of medical insurance for the parties;
(j) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
(k) the inability of one party to obtain meaningful employment due to age or absence from the workforce;
( l ) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
(m) the tax consequences to each party;
(n) marital property subject to distribution pursuant to subdivision five of this part;
( o ) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
(p) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
(q) any other factor which the court shall expressly find to be just and proper.

Final Award of Maintenance
When a final order of maintenance is awarded, the courts are required to consider the factors set forth in Domestic Relations Law Section 236-B(6).  These factors are: 

(1)  The income and property of the respective parties including marital property distributed per the equitable distribution statute.  DRL 236-b(6)(a)(1).

(2)  The length of the marriage. DRL 236-B(6)(a)(2).

The length of the marriage is a major factor that the court must consider.  The duration of the marriage, however, is only one of the factors and is not likely to be controlling by itself.  That being said, the length of the marriage is an important consideration affecting the amount and duration of the maintenance award.  In the absence of unusual circumstances, in a very short marriage it could be expected that the court would either not award or significantly reduce an award of maintenance to the other spouse.

(3)  The age and health of both parties. DRL 236-B(6)(a)(3)

The age of the parties is taken into account in making an award of spousal support.  The court will consider the amount of time left to the party to become self-supporting after the divorce.  This factor becomes more important if there is an age disparity between the parties.  It also may become important when considered with other factors affecting distribution.  For example, a fifty-five year old with no employment history or occupational skills will be viewed differently than a twenty-five year old.
The court will consider the health of each of the parties in making its awards and determinations.  Health is one of the criteria that may not have a significant impact if both the parties appear healthy.  By contrast, the matter would become more significant if there is some major difference in the health of the parties..

(4)  The present and future earning capacity of both parties. DRL 236-B(6)(a)(4)

Matters related to occupation and income may require evidence of present employment and/or recent employment history.  Such information would not be available with respect to spouses who have not been employed outside the home during much of the marriage.  In such cases individuals may have acquired vocational skills prior to or during the marriage and might be employable at the present time or in the future.  It is important even for a spouse with limited work history during the marriage to show that there has been an effort to return to the work force.

(5)  The need of one party to incur education or training expenses. DRL 236-B(6)(a)(5)

A party may need maintenance in order to return to school or finish his or her education.

(6) The existence and duration of a pre-marital joint household or a pre-divorce separate household. DRL 236-B(6)(a)(6)

If the parties lived together before marriage, the nature of their premarital lifestyle may be considered by the court. If the parties lived separately before the marriage the court may consider the separate premarital lifestyle when determining maintenance.

(7)  Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law. DRL 236-B(6)(a)(7)

(8)  The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor. DRL 236-B(6)(a)(8)

(9)  Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage. DRL 236-B(6)(a)(9)

(10)  The presence of children of the marriage in the respective homes of the parties. DRL 236-B(6)(a)(10)

(11)  The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity. DRL 236-B(6)(a)(11)

(12)  The inability of one party to obtain meaningful employment due to age or absence from the workforce. DRL 236-B(6)(a)(12)

(13)  The need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment. DRL 236-B(6)(a)(13)

(14)  The tax consequences to each party. DRL 236-B(6)(a)(14)

Maintenance is tax deductible for the paying spouse and is taxable income to the recipient spouse.

(15)  The equitable distribution of marital property. DRL 236-B(6)(a)(15)

Any property award under equitable distribution may be a factor considered by the court in determining maintenance.

(16)  Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. DRL 236-B(6)(a)(16)

Contributions refers to both the financial and non financial contributions made to the marriage and to other spouse. Payments for school, the use of marital funds to form a business are examples of financial contribution, while taking care of children to allow the other spouse the time to advance his or her own career is an example of a non financial contribution.

(17)  The wasteful dissipation of marital property by either spouse. DRL 236-B(6)(a)(17)

(18)  The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration. DRL 236-B(6)(a)(18)

(19)  The loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties. DRL 236-B(6)(a)(19)

(20)  Any other factor which the court shall expressly find to be just and proper. DRL 236-B(6)(a)(20)