Maintenance in New York

This article provides answers to frequently asked questions about maintenance in New York.

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What is Maintenance?

In New York, “maintenance,” which is also called “alimony” or “spousal support" in some states, is money that one spouse pays the other during and/or after a divorce.

What is the Purpose of Maintenance?

Maintenance is paid to ensure that supported spouses continue to live the same or a similar lifestyle as they did while they were married. It is also a way to give supported spouses time to gain skills or training necessary to become “self sufficient” (meaning that they can support themselves financially).

What are the different types of Maintenance?

In New York, there are two different types of maintenance awards.

Pendente Lite maintenance

Pendente lite” maintenance is also known as temporary maintenance and may be awarded to a spouse early on in the divorce action. The purpose is to give the supported spouse money to cover living expenses and keep the marital standard of living in place while the court is making a decision on a final award of maintenance.

The court will take into consideration the financial need of the supported spouse and both spouses’ income(s) and assets. An award of temporary maintenance ends once a final order of maintenance is made by the court.

Final order of maintenance

As part of the judgment of divorce, the court may issue a final order of maintenance, which can either be “durational” or “nondurational.”

“Durational” maintenance is paid for a fixed period of time. This is based on the idea that the receiving spouse will become self-supporting after several years.

“Nondurational” maintenance, also called lifetime maintenance, will be paid for the supported spouse’s lifetime. While rare, courts have awarded nondurational maintenance in special circumstances, for example where one spouse is older, unlikely to find employment or has an illness.

Do Husbands Always Pay Maintenance?

No. The old fashioned way of thinking was that a husband earned more and was therefore always responsible for maintenance payments. Today, either spouse may be required to make maintenance payments, depending on a variety of factors including income - not gender (see the factors listed below).

How is Maintenance Determined?

Divorcing spouses can agree on an amount of maintenance by entering into a written agreement. These agreements must be made in writing and signed by both spouses.

Agreements about maintenance may be made at various times, including:

  • prior to the marriage, which is called a “prenuptial” agreement
  • during the marriage, which is called a “post-nuptial” agreement, or
  • during and as a result of the divorce, which is called a “stipulation of settlement.”

If a couple has a prenuptial or post-nuptial agreement, it is usually filed at the same time as the initial filing of the divorce papers. If there is no such agreement, and the couple is able to negotiate an amount of maintenance as part of their divorce settlement discussions, they can then memorialize that agreement into a stipulation of settlement and submit it to the divorce court, so that their agreement can be turned into an order and become part of the final divorce decree.

If divorcing couples have not entered into a written agreement or cannot agree on maintenance payments as part of their divorce, a court will determine the proper award.

What Factors do Courts Consider When Determining Maintenance?

In New York, courts may consider any of the following factors:

  • income and property of both spouses
  • length of the marriage
  • age and health of both spouses
  • present and future income of both spouses
  • the ability of the receiving spouse to become self-supporting
  • acts by one spouse which inhibit the other from achieving employment (for example, domestic violence)
  • loss of income of the receiving spouse as a result of giving up a career (for example, if one spouse stayed home to care for the children instead of working a full-time job)
  • whether there are children from the marriage that live in the marital home
  • contributions made by the receiving spouse (for example, if the spouse is a home maker and does not receive a fixed income)
  • waste of property by either spouse (for example, if one spouse has wasted or lost marital funds as the result of a gambling addiction)
  • the loss of health insurance benefits as a result of the divorce
  • the tax consequences to each spouse as a result of paying or receiving maintenance
  • any transfer of property by either spouse that is unfair (for example, where one spouse hides assets), and
  • any other factor the court believes is relevant to the decision.

For cases of temporary or “pendente lite” maintenance, courts will not usually consider these factors due to the length of time it would take to reach a decision and to ensure that the supported spouse is being provided necessary monetary funds during the divorce.

Is “Marital Fault” a Factor in the Court’s decision?

“Marital fault” refers to either spouse’s misconduct, which led to the divorce and provides the basis for a “fault” divorce: where one spouse blames the other for the breakdown of the marriage. Common fault factors include adultery, mental or physical abuse and incarceration.

New York courts do not typically consider marital fault when deciding whether to award maintenance. The general understanding is that marital fault is separate from the economic issues during a divorce.

However, under certain, rather extreme circumstances, fault can influence a judge’s decision about maintenance. For example, one New York court denied a wife’s request for maintenance where she engaged in drug and alcohol abuse, assaulted her husband, used marital funds for her own spending habits and had no intention of advancing her career.

Since marital fault is not specifically listed as a factor courts consider in determining a maintenance award, a court will use the “any other factor” category (listed above) to justify a decision that’s based on misconduct

Can a Maintenance Award be Modified?

Yes. Spouses that want to modify (change) maintenance must go to court and ask for a modification, because this will not happen automatically.

A maintenance order can be modified if either party shows “a substantial change in circumstances.” For example, if the paying spouse loses a job or becomes ill and can’t work, the court may decrease payments.

However, the court will want to make sure the paying spouse isn’t trying to lower maintenance payments by voluntarily or intentionally becoming underemployed or unemployed. If a court finds that the paying spouse is trying to avoid a maintenance obligation, the court may impute income and order the paying spouse to pay based on potential income.

When will Maintenance Terminate?

For temporary maintenance, the award terminates once the court issues the final maintenance order.

Nondurational maintenance may end prior to the date set in the order by any of the following:

  • death of either spouse
  • the remarriage of the supported spouse, and
  • cohabitation (if the supported spouse is habitually living with someone or holding themselves out to be husband and wife with that person).

Resources

For the complete list of factors courts consider when determining maintenance, see DRL § 236-B(6)

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