What spousal maintenance is
Spousal maintenance, sometimes still called alimony, is the payment one spouse makes to the other after a separation or divorce. In New York it is governed by Domestic Relations Law §236(B). The statute provides a formula for the amount, a guideline for the duration, and a list of factors a court can use to depart from either.
Maintenance is paid to allow the lower-earning spouse to maintain a reasonable standard of living after the divorce and, where possible, to become self-supporting. It is not a punishment, and it is not a reward.
The formula
The maintenance formula uses both spouses’ incomes up to an income cap that is adjusted periodically by statute. Above the cap, the formula is advisory and the court has discretion based on the statutory factors.
Two separate calculations are run, one for cases with child support and one without, and the lower number sets the presumptive amount. The duration is set by reference to the length of the marriage on a sliding scale.
For a working example tailored to your situation, schedule a consultation. Numbers move with income, marriage length, and the presence of children.
How long it lasts
The statute sets advisory durations as a percentage of the length of the marriage. Courts have discretion to depart based on the factors.
- Marriages of 15 years or less. 15–30% of the length of the marriage.
- Marriages of more than 15 up to 20 years. 30–40% of the length of the marriage.
- Marriages of more than 20 years. 35–50% of the length of the marriage.
- For very long marriages where one spouse is at or near retirement age, courts can and do award non-durational maintenance.
The statutory factors
When a court departs from the formula or the durational guideline, it does so based on a list of statutory factors. We have grouped them here into categories that match how the analysis actually runs in practice.
Factors, grouped
- Age and health of both spouses
- Income and property of each
- Earning capacity, including time out of the workforce
- Need to incur education or training expenses
- Tax consequences of the maintenance award
- Length of the marriage
- Standard of living established during the marriage
- Direct or indirect contributions to the other spouse’s career
- Loss of inheritance or pension rights from the divorce
- Equitable distribution of marital property
- Presence of minor children of the marriage
- Care of children or stepchildren
- Care of disabled adult children, elderly parents, or in-laws
- Effect of caretaking on earning capacity
- Wasteful dissipation of marital property
- Transfers made in contemplation of divorce
- Acts that inhibit the other spouse’s earning capacity
- Domestic violence during the marriage
- Any other factor the court finds just and proper
Modification after the divorce
Maintenance can be modified after the divorce on a showing of substantial change in circumstances. Loss of employment, retirement, serious illness, or significantly increased income for the recipient are common grounds. The standard for modifying maintenance is more demanding than for child support, and the agreement may set its own conditions.
For the post-judgment path, see the Enforcement & Modification page.
Questions clients ask first
- Is maintenance the same as alimony?
- Yes. New York uses the term maintenance, but it is the same concept as what other states call alimony. We use the terms interchangeably with clients.
- Is maintenance taxable?
- Under current federal law (post-TCJA, for divorces finalized after January 1, 2019) maintenance is not deductible by the payor and not taxable to the recipient. State tax treatment can differ. We coordinate with tax counsel for cases where the structure matters.
- Does maintenance always end at retirement?
- Not automatically. Retirement at full retirement age can be grounds for modification, but the analysis depends on the agreement, the payor’s actual ability to pay, and the recipient’s circumstances. We plan for it well before the retirement date.
- What if my spouse and I both work?
- Maintenance can still be awarded if there is a meaningful income disparity. Where incomes are close, the formula often produces a small or zero award. The analysis is not whether both spouses work, it is what the income gap is and what each spouse’s reasonable needs are.
- Can we agree to waive maintenance?
- Yes, in a properly drafted agreement, usually in a prenuptial, postnuptial, or settlement agreement. A waiver has to meet basic procedural and substantive requirements to hold up.
- What happens if my ex-spouse remarries?
- Maintenance terminates automatically on the recipient’s remarriage under New York law. It can also be terminated or reduced if the recipient is cohabiting and the agreement or order so provides.