Spousal Maintenance in New York

Learn what the court will consider in deciding whether to order spousal maintenance in a New York divorce case.

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In a New York divorce case, the court will decide whether either spouse is entitled to spousal maintenance (sometimes referred to as alimony). As marriages have become more modern, and moved away from the traditional model of a working husband and stay-at-home wife, New York law has also changed. Today, courts look at 20 factors, discussed below, in deciding whether to award spousal maintenance. (For more information on New York family law, see our New York Divorce and Family Law page. For all of our articles on maintenance and alimony, see our Alimony area.)

Spousal Maintenance vs. Spousal Support

Some people mistakenly use the terms "spousal maintenance" and "spousal support" interchangeably, but there's an important difference: Although both involve payment of money by one spouse to the other, spousal support is paid while the couple is still married, while spousal maintenance is paid following a divorce. 

Spousal support is awarded in family court. Because spouses have a legal duty to support each other, the Family Court Act allows a support proceeding to be commenced by a married person. There is no requirement that the parties be separated for a court to award spousal support. In many cases, a spouse seeks spousal support in family court because the couple has not divorced, yet the other spouse is not meeting his or her support obligations. 

When a spousal support award is made in family court, the court does not set time limits on the award. This means that the spousal support award can last for many years. To terminate or modify spousal support, one of the spouses has to petition the court for a modification of the award. If there is no modification, spousal support ends only after a divorce. During the divorce proceeding, the court will decide whether to award spousal maintenance. The determination of spousal maintenance and the grant of a divorce will terminate any existing family court spousal support award.

Spousal Maintenance Factors

When a couple divorces, the court will decide whether to award spousal maintenance. Spousal maintenance is set either for life or for a specific period of time. However, in most cases that award spousal maintenance, the award is for a set number of years. 

Spousal support and maintenance are gender neutral. Courts can, and do, award spousal maintenance to men and women. However in the New York Courts, there are many fewer cases where men have sought spousal maintenance. This is simply because men continue to earn more than women, on average, and to stay in the workforce after children are born. 

When deciding on spousal maintenance, courts focus primarily on the couple's standard of living while married and on the property and income of each spouse. To set the amount and duration of a maintenance award, the court must consider these factors: 

  • The income and property of each spouse, including each spouses' share of the marital property as divided by the court. Courts are required to consider the property owned by both spouses. If the person seeking spousal maintenance will receive a significant amount of the couple's marital property, or if that person has significant other resources, such as an inheritance, the award of spousal maintenance will be lower.
  • The length of the marriage. A longer marriage is more likely to result in a larger spousal maintenance award, particularly if the spouse requesting maintenance has stayed home with children or earned substantially less than the other. 
  • The age and health of the parties. If one spouse is in poor health or of advanced age, the spousal maintenance award may be larger. 
  • The present and future earning capacity of both spouses. In determining maintenance, the court will focus on both the current status of the person seeking support and his or her future ability to be self-supporting. If the person has the ability to obtain employment or education and eventually become self-supporting, maintenance will be awarded for a shorter term. If the person seeking maintenance truly lacks the ability to become self-supporting, due to age or other factors, the Court will structure maintenance to address the person's financial limitations.
  • A spouses' need to incur training or education expenses. An overriding purpose of New York's spousal maintenance provisions is to provide the person receiving support with an opportunity to achieve financial independence. In considering maintenance, the court's focus will be on the financial future of the recipient. If maintenance is awarded, it can be limited to the time period needed for the recipient spouse to pursue additional educational opportunities or to build a career. 
  • The existence and duration of a joint household before marriage or separate households before divorce. Presumably, this could affect the court's determination of how long the marriage "lasted."
  • Acts by one spouse against the other that inhibit the other's earning capacity or ability to get a job. This factor allows the court to consider domestic violence and similar spousal misconduct. 
  • The ability of the party seeking maintenance to become self-supporting, and the time and training that will require. Again, a spouse who has the ability to become self-supporting may be awarded maintenance while getting up to speed; a spouse who will never be self-supporting may be entitled to a longer or lifetime award. 
  • 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. This factor addresses the lifetime impact that the spouses' family choices have on their financial security if they divorce. It is common for spouses to decide that one person will be the primary caretaker for the children and the home while the other person pursues a career and provides economically for the family. While this arrangement can work well for intact families, the results can be devastating to one spouse if the parties divorce. It may prove impossible for that spouse to resume their career after five, ten, or twenty years of marriage. The amount of spousal maintenance awarded in such cases much include a consideration of the stay at home partner's loss of lifetime earnings.
  • 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. 
  • Whether a spouse's earning capacity is inhibited by ongoing care of children, step-children, adult children with disabilities, or elderly parents or in-laws. Young children aren't the only ones who require care. A spouse who must stay home to care for other family members may also be entitled to a larger maintenance award. 
  • Whether one spouse will have trouble finding work due to age or absence from the workforce. A spouse who will have a harder time finding a job may be entitled to a larger maintenance award. 
  • Exceptional, additional expenses for the children. The custodial parent may be entitled to more maintenance to pay the costs of schooling, day care, and medical expenses for the couple's children. 
  • The tax consequences to each party. Spousal maintenance is considered income. A person receiving spousal maintenance must claim the amount received as income on federal and state income tax returns. Conversely, the person paying support is entitled to an income tax deduction. In considering the amount of spousal maintenance to be awarded, the court will consider the tax impact on each parent. 
  • The equitable distribution of marital property. New York courts are required to divide a divorcing couple's marital property equitably, which doesn't always mean that each spouse gets exactly half of the assets. For example, if one spouse is awarded the marital home, that spouse may have to pay maintenance to the other spouse, to pay off his or her equity in the home.
  • 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. Money isn't the only way couples support each other during marriage. This factor recognizes the non-financial contributions of spouses. If one person has not worked, but has contributed as a spouse, parent or homemaker, or has assisted the other spouse in advancing his or her career, the court must recognize these important contributions in structuring a fair and equitable maintenance award
  • The wasteful dissipation of marital property by either spouse. When one spouse frivolously spends or dissipates a marital account or other asset, he or she will be deemed to have wastefully dissipated the asset. This is especially crucial when courts are dividing property. If a marital asset is no longer in existence because one spouse wasted it, the court can require that spouse to pay the other spouse his or her equitable share. The court can also order the payment of spousal maintenance to help alleviate the effect of wasteful dissipation. Such a remedy is effective if the payor spouse has reduced the assets available for equitable distribution, but has sufficient income to provide for the recipient spouse at a level that accounts for the dissipation. And, if the person seeking maintenance has wastefully dissipated assets, that could reduce the maintenance award.
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration. The total assets of both spouses will be considered, including those that have been knowingly transferred after, or just prior to, filing for divorce or separation. Courts will consider such a transfer as a deliberate effort to avoid an equitable distribution of the couple's property. As with assets that have been wastefully dissipated, those that have been transferred deviously can still be considered part of the marital estate. Even if the asset no longer exists, that will not deprive the "innocent" spouse from receiving money or property as his or her share of the missing asset. Courts can consider those transfers in making awards of spousal maintenance.
  • The loss, availability, and cost of health insurance. When a couple divorces, neither can keep the other on his or her family health insurance plan. Instead, a spouse who was covered by the other spouse's plan must get an individual plan or continue benefits through COBRA, at his or her own expense. Courts can consider these additional costs in awarding maintenance. 
  • Any other factor which the court expressly finds just and proper. Of course, every divorce is different. This factor allows courts to consider the special circumstances of each case to come up with a fair award. 

Updated by: , J.D.

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