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Spousal Maintenance

On September 25, 2015, a new law in New York was passed establishing new maintenance procedures.

The new Domestic Relations Law §236 (B) ( 5-a) provide drastic changes – that must be understood to achieve the best results. The prior law only provided guidelines and formulas for pre-divorce, or temporary maintenance awards. Now the law will apply the same 2 formulas to temporary maintenance and post-divorce maintenance awards.

Separate Formulas for Maintenance Payments for Monied Spouses Paying Child Support. The prior law applied equally to parents with children paying child support, even if the maintenance payor was also the custodial parent. The new law will use a different formula requiring less maintenance for a maintenance payor who is also the non custodial parent and paying child support. Maintenance is calculated prior to child support. For child support guidelines calculations, maintenance is deducted from the payor’s inome and added to the payee’s income.

Lowering the Income Cap for Maintenance Payments. The 2010 law provided for application of the formula up to the income cap of $524,000. The revised law will establish a $175,000 income cap for applying the formula to determine maintenance payments. Any award of maintenance on the above-the-cap income is discretionary and based on statutory factors.

Duration of Temporary and Post-Divorce Maintenance Awards. Prior, the temporary maintenance award would be in effect for the duration of the litigation. Now, the Court may determine the duration of the temporary maintenance award, considering the length of the marriage. The temporary maintenance may be shorter than the litigation. Further, in awarding post-divorce maintenance, the Courts may now consider an advisory schedule, tied to the length of the marriage and yielding a percent of the length of the marriage for which maintenance will be payable.

Spousal maintenance, previously called alimony in New York, is the legal term for money one spouse or former spouse may be required to pay the other spouse after divorce. While spousal maintenance may be set for life, it is generally awarded for a specific period of time. To determine the amount and duration of a maintenance award, courts consider these factors:

  • The income and property of each spouse, including each spouse’s share of the marital property as divided by the court
  • The length of the marriage
  • The age and health of the parties
  • The present and future earning capacity of both spouses
  • A spouse’s need to incur training or education expenses
  • The existence and duration of a joint household before marriage or separate households before divorce
  • Acts by one spouse against the other that inhibit the other’s earning capacity or ability to get a job
  • The ability of the party seeking maintenance to become self-supporting, and the time and training it will require
  • Whether the spouse seeking maintenance has reduced or lost lifetime earning capacity as a result of having forgone or delayed education, training, employment, or career opportunities during the marriage
  • Where the children live
  • Whether a spouse’s earning capacity is inhibited by ongoing care of children, stepchildren, adult children with disabilities, or elderly parents or in-laws
  • Whether one spouse will have trouble finding work due to age or absence from the workforce
  • Exceptional, additional expenses for the children
  • The tax consequences to each party
  • The equitable distribution of marital property
  • The contributions and services of the party seeking maintenance as a spouse, parent, wage earner, homemaker, and to the career or career potential of the other party
  • The wasteful dissipation of marital property by either spouse
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration
  • The loss, availability, and cost of health insurance
  • Any other factor that the court expressly finds just and proper