New York courts use standardized guidelines to arrive at a suggested amount of spousal maintenance. Judges can deviate from the amount when appropriate.
Alimony is a payment that one spouse makes to the other spouse during or after a divorce. In New York, alimony is called "spousal support" (when the parties are still married) or "spousal maintenance" (when the parties are divorced).
The court's goal in awarding alimony is to help the less financially stable spouse meet their needs and, hopefully, become self-supporting. The type, duration, and amount of spousal maintenance a court will award depend on the specific facts of your case.
- Types of Alimony Available in New York
- Who Qualifies for Alimony in New York?
- How Do New York Courts Calculate Temporary Spousal Maintenance?
- How Do New York Courts Calculate Postdivorce Alimony?
- How Do New York Courts Calculate Spousal Support for High Earners?
- How Long Does Spousal Maintenance Last in New York?
- How Is Alimony Paid in New York?
- How Do You Modify Spousal Maintenance in New York?
- Tax Consequences of Alimony in New York
Types of Alimony Available in New York
New York courts can order two types of maintenance:
- Temporary maintenance. Also referred to as "temporary support pendente lite," temporary maintenance typically is paid to a spouse during the divorce process and ends when the judge issues a final order of divorce. In New York, temporary maintenance is awarded upon a showing of a spouse's actual financial need, and the court will use statutory guidelines to determine a suggested baseline of support.
- Postdivorce maintenance. This support is a payment from one spouse to the other after the court finalizes the divorce. Typically, the award is based on the parties' incomes and the length of the marriage. Like temporary maintenance, New York courts use statutory guidelines to determine a suggested baseline of support.
There's no guarantee of a maintenance award in any divorce case. If the court decides that maintenance is appropriate, it can award one or both of temporary and postdivorce maintenance.
Who Qualifies for Alimony in New York?
Either spouse filing for divorce in New York can request alimony. Usually the higher earning spouse (the "payor") makes payments to the spouse with lower (or no) income (the "payee").
How Do New York Courts Calculate Temporary Spousal Maintenance?
New York law requires courts to use a statutory formula to calculate a suggested amount of temporary support. The fixed formula helps to keep temporary awards consistent and uniform. However, if the guideline support would be unjust or inappropriate, the judge has discretion to deviate from the guidelines.
To arrive at an amount for the temporary award, New York's temporary support calculator considers:
- each party's income (up to $203,000 for the paying spouse), and
- whether the paying spouse will also pay child support.
The amount of any temporary maintenance award will not affect the court's decision regarding postdivorce maintenance. Temporary maintenance ends no later than when the divorce is final or either party dies—whichever occurs first.
(N.Y. Dom. Rel. Law § 236(5) (2022).)
How Do New York Courts Calculate Postdivorce Alimony?
New York courts use a calculator to compute a standardized, suggested amount for postdivorce maintenance.Judges have discretion to decrease or increase the award if the guideline amount would be unjust or inappropriate.
Typically, judges consider a variety of factors in addition to the guidelines, including:
- age and health of the parties
- present or future earning capacity of the parties
- need of one party to incur education or training expenses
- whether a child support award affects the amount of maintenance
- wasteful use of marital property or unfair transfers of marital property
- existence and duration of a pre-marital joint household or a pre-divorce separate household
- acts by one of the spouses that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment, such as domestic violence
- availability and cost of medical insurance
- care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity
- tax consequences to each party
- standard of living established during the marriage
- reduced or lost earning capacity of the payee as a result of giving up or delaying education or career opportunities during the marriage
- equitable distribution of marital property and the income the party might get from the property
- contributions and services of the payee to the household or career of the payor, and
- any other factor the court believes is just and proper to consider.
(N.Y. Dom. Rel. Law § 236(6)(e) (2022).)
How Do New York Courts Calculate Spousal Support for High Earners?
Although the paying spouse's income is an important consideration when awarding spousal support, any income the spouse makes over $203,000 won't affect the amount suggested by New York's spousal support calculator. In other words, the court won't consider income over $203,000 in the calculation unless the judge finds a reason to increase the award.
A judge can increase the award above the cap when they find that the guideline obligation is unjust or inappropriate, based on the same factors it considers when deciding to award alimony (discussed above). If the judge finds that a deviation is appropriate, they must specify in a written order the adjusted amount, the reasoning for the amount, and the factors considered.
(N.Y. Dom. Rel. Law § 236(6)(d) (2022).)
How Long Does Spousal Maintenance Last in New York?
Alimony can be "durational" or "nondurational," depending on the circumstances and the judge's evaluation. Durational awards last for a fixed period of time; nondurational awards continue indefinitely.
When a judge believes that a durational award is appropriate, they can use a suggested schedule that's based on how long the parties were married.
- For marriages that lasted 0 to 15 years, support should last 15%-30% of the length of the marriage
- For marriages that lasted more than 15 years to 20 years, support should last 30%-40% of the length of the marriage.
- For marriages that lasted more than 20 years, support should last between 35%-50% of the length of the marriage.
Along with this suggested schedule, the judge can also take into account the factors considered when deciding whether awarding support (discussed above), as well as the parties' anticipated retirement assets, benefits, and retirement ages.
The judge has discretion to award nondurational support when appropriate. For example, the judge might order payments without a set end when the marriage lasted a long time and one of the spouses never entered the workplace because the other spouse had a high income.
All support awards will end (regardless of whether they're durational or nondurational) if:
- either spouse dies, or
- the recipient spouse remarries.
(N.Y. Dom. Rel. Law § 236(6)(f) (2022).)
How Is Alimony Paid in New York?
The court usually orders the paying spouse to pay support periodically (typically monthly). Spouses can create an agreement for payment, like a monthly direct deposit, and the court will not interfere. However, in cases where the parties can't agree on a payment method, the judge will usually create an income withholding order to ensure timely payments each month.
Income withholding allows the paying spouse's employer to deduct the payments directly from employee wages and forward them to the recipient spouse. If a spouse fails to pay, the supported spouse can file a complaint with the court and request assistance collecting the past-due payments.
In some cases, parties will agree to a lump-sum payment of support, where the payor will provide the full amount of maintenance on a specific date. Lump-sum support is helpful for supported spouses because there's no need to wait for a check every month. However, most couples aren't in a financial position to provide a large sum at the end of a divorce.
How Do You Modify Spousal Maintenance in New York?
Either party can request a modification of a spousal maintenance order when the payee is unable to be self-supporting on the current amount or there is a substantial change in financial circumstances. General financial hardship is considered a substantial change, as is the partial or full retirement of the payor if the retirement greatly affects the payor's income. (N.Y. Dom. Rel. Law § 236(9)(b) (2022).)
To modify your spousal maintenance order, you can file a motion in the New York supreme court or file a verified petition in Family Court (as long as the supreme court didn't retain control over your case). If you're not represented by a lawyer, you can use the Family Court's DIY program.
Tax Consequences of Alimony in New York
For divorces finalized before December 31, 2018, spousal maintenance payments are deductible on federal taxes for the paying spouse and are taxable income to the recipient spouse. However, under the 2017 Tax Cuts and Jobs Act, maintenance payments ordered on or after January 1, 2019, are no longer tax-deductible on federal taxes by the payor spouse and not counted as income for the recipient spouse.
New York state tax law differs from federal tax law: Alimony payments are deductible for the payor spouse, and are counted as income for the payee spouse. (N.Y. Tax Law § 612(w) (2022).) For questions about the tax implications of paying or receiving alimony in New York, it's a good idea to consult with a tax professional.
