Alimony or “spousal support” in New York State is referred to by the courts as Maintenance. It’s a monetary amount mandated by the courts for one spouse to pay the “supported spouse” during and/or after divorce proceedings. The court’s intention is to allow the supported spouse to financially afford a lifestyle similar to what he or she experienced as a married couple, until they can find other means to become self-supporting, including time and cost to gain necessary skills and/or training for future employment if applicable.
Historically a husband usually earned more and was therefore responsible for paying maintenance when a couple went through a divorce. However, the law is gender-neutral, meaning maintenance support can be awarded to either spouse. Maintenance is determined in part by the financial income of both parties (among other factors), but gender is not a factor in determining maintenance.
Maintenance is for a spouse is determined separately from Child Support. However, when children are involved they still play a significant role in determining a Post-divorce Maintenance amount in combination with the others factors the courts used when determining financial circumstances and need.
Prenuptial, Postnuptial, and Stipulation of Settlement
The amount of maintenance can be agreed upon before marriage in a written and signed agreement called a Prenuptial Agreement. A similar and legally binding agreement can also be created and signed during the marriage – this is called a Postnuptial Agreement. If either of these agreements exist, they should be included with the initial filing of the divorce papers. If no such agreement exists, the couple can come to an agreement during the divorce proceedings and create a Stipulation of Settlement, which they would submit to the court. The court would then review the agreement and use it as the basis of a final order to be included in the final divorce decree.
If a couple cannot agree on the terms and amounts, the court will determine the appropriate amounts for both of the following:
- Temporary Maintenance: This is the amount the supported spouse is to be paid during divorce proceedings, and is determined using a relatively simple formula. If you believe you need Temporary Maintenance while your divorce is pending, you need to request it – it isn’t a responsibility of the paying spouse until the court order is created. Temporary Maintenance is not available for Uncontested Divorces (although they are available for No Fault Divorces), and terminates when a final order of maintenance is made by the courts when the divorce is finalized.
- Post-divorce Maintenance: The amount the paying spouse must pay the supported spouse after a divorce is called Post-divorce Maintenance. Most maintenance settlements of this type are Durational, meaning that are for a fixed period of time the court estimates the supported spouse requires to become self-supporting (usually a period of several years). In special or extreme circumstances, the court may award the supported spouse a Nondurational Maintenance award. Also called Lifetime Maintenance awards, these may be mandated by the court if the supported spouse is elderly or has extreme health issues that makes it unlikely he or she would be able to find future employment and become self-supporting. Post-divorce Maintenance awards end at a specified date included in the judgment, at the death of either spouse, or when the supported spouse either remarries or enters into a habitual living situation with someone else.
Calculating Temporary Maintenance
Calculating the monetary amount for a Temporary Maintenance award used to be at the discretion of the courts and determined on a case by case basis. However, in an effort to create more consistency, all award amounts awarded since October 2010 are determined using the following formula, a statutory guideline based on the incomes of both spouses.
- IF Child Support will be paid separately as part of the divorce settlement AND if the Paying Spouse is also the non-custodial parent, THEN Subtract 20% of the supported spouse’s income from 30% of the paying spouse’s income.
- IF either of the above criteria is false, THEN Subtract 20% of the supported spouse’s income from 25% of the paying spouse’s income.
- Multiple the total income of both spouses by 40% and then subtract the supported spouse’s income.
- Compare the total amount from either number 1 or number 2 (which is applicable to your situation) with the total amount from number 3. The court will award the lesser of these amounts as Temporary Maintenance, which the paying spouse will be required to pay to the supported spouse.
The above formula also only includes income (of each spouse) up to $175,000. When incomes exceed that amount, the court may consider other factors to determining an appropriate Temporary Maintenance award.
Deviating from the guideline
In most all cases, NY State Court adheres to this guideline. If the court finds the resulting amount is “unjust or inappropriate” because of other contextual factors, or if the income of the supported spouse exceeds $175,000, the court is required to document in a written order what the adjusted amount is to be, along with the reasoning that led to the decision to deviate from the guideline. These considerations include the age and health of each spouse, the availability and cost for medical insurance, the ability of each spouse to earn an income that allows them to maintain a similar lifestyle they established while married, and any reduced or lost earning capacity as a result of having delayed or passed on education or career opportunities during the marriage.
NY State provides an online resource called the Temporary Spousal Maintenance Guidelines Calculator, available at http://www.nycourts.gov/divorce/calculator.pdf. This calculator also includes the full list of factors the court may consider when deviating from the guidelines.
Calculating Post-divorce Maintenance
Because Post-divorce Maintenance awards may cover a much longer period of time and have a much greater financial impact on both spouses, NY State court does not use a mathematical calculator to determine award amounts and terms. Instead the court bases its judgment on a variety of factors, including, but not limited to:
- Income of both spouses
- Equitable distribution of property as part of the divorce settlement outside of any Post-divorce Maintenance award amounts
- Age and health of both spouses, as well the loss of health insurance as a result of the divorce for either spouse
- Length of the marriage
- Present and future income (earning capacity) of both spouses, as well as costs (such as education or training) that would enable the supported spouse to become self-supporting
- Contributions made by the supported spouse (such as maintaining the home while the other spouse was employed)
- Children of the spouses, whether they live with the supported spouse, and whether they have disabilities that require extra care or incur additional costs
- Other costs related to children from the marriage, such as daycare, school, and medical expenses
- Detriments to the couple’s financial situation during the marriage (such as a drug or gambling habit, or one spouse hiding financial assets from the other)
- Tax implications of paying or receiving the awarded maintenance
- Any other factor the court believes is relevant to the decision.
The last item in the above list of factors is purposefully vague in order to allow judges the necessary latitude to make a fair ruling in each case, according to the individual merits and factors of that case. Unfortunately, the enormous variety of situations that people find themselves in, as well as the variety of reasons that can lead up to a divorce, make it nearly impossible to put a percentage or number to what you might expect from a divorce settlement in terms of Post-divorce Maintenance. New York State isn’t alone in this state of affairs – no state in the union has found an appropriate formula to apply that wouldn’t inhibit the overall fairness of the rulings in divorce cases.
Marital Fault and Maintenance
The “any other factor” category of consideration also serves another purpose. Marital Fault, which one spouse “blames” the other for the end of the marriage and includes things such as adultery, incarceration, and mental and physical abuse, are considered as separate issues from the monetary decision related to Maintenance awards. However, judges can (and have) used the “any other factor” category in extreme cases to adjust a Maintenance award for spouses that have squandered entire saving accounts on drug or alcohol abuse, excessive spousal abuse, or any combination of related neglectful or harmful activities.
Modification and Termination of Maintenance
As previously mentioned, Temporary Maintenance concludes with a final divorce order is issued by the court. A Post-divorce Maintenance order will cease when the date set in the order is reached, when either spouse dies, or when the supported spouse remarries or habituates with another supporting person. Post-divorce Maintenance can also be modified or discontinued if either spouse requests it and the courts determine that there has been a substantial change in circumstances for either spouse. This may include the termination of employment or severe illness of the paying spouse. However, once awarded, it can be legally difficult and/or time-consuming to terminate a maintenance award. Courts reasonably want to ensure that it is in the best interest of both parties before making any modifications to a previously awarded settlement. If you find yourself in this situation, it’s best to speak with a qualified Family Law Attorney before proceeding any further. Better yet, you should find and obtain the services of a Family Law Attorney that you trust prior to the divorce proceedings and any Maintenance is awarded – whether you believe you will be the paying or the receiving spouse in the settlement.