Alimony is payment one spouse makes to another during or after a divorce. The purpose of alimony is 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). In some states, alimony is known as spousal support. In New York, alimony is called “maintenance.” For purposes of this article, the term alimony and maintenance should be used interchangeably.
“Pendente lite” or temporary maintenance is paid while the divorce case is pending and intended to provide the supported spouse with immediate financial need by taking into consideration the supported spouse’s reasonable needs and the pre-divorce standard of living. Temporary maintenance ends when a final order of maintenance is made by a judge.
Post-divorce maintenance is awarded to the supported spouse after the divorce action. Post-divorce maintenance ends by the death of either spouse, the remarriage of the supported spouse or if the supported spouse is habitually living with someone or holding themselves out to be husband and wife with that person.
In cases that were determined before October 13, 2010, temporary maintenance was awarded based on the court’s discretion and varied on a case-by-case basis. For cases commenced on or after October 13, 2010, the court uses a statutory formula to calculate temporary maintenance, which is based primarily on the spouses’ incomes. This new fixed formula is used to maintain uniformity and consistency when calculating awards.
The formula requires the court to take the following steps to calculate the amount of temporary maintenance:
1) Subtract 20% of the supported spouse’s income from 30% of the paying spouse’s income.
2) Multiply the total income of both spouses by 40% and subtract the supported spouse’s income from that amount.
3) The court will determine the temporary award of maintenance based on the lower amount of (1) or (2).
For example, if the paying spouse’s income is $60,000 and the supported spouse’s income is $30,000, the court would use the following steps:
1) $6,000 (20% of $30,000) is subtracted from $18,000 (30% of $60,000) = $12,000
2) $36,000 (income of both spouses: $30,000 plus $60,000 multiplied by 40%) minus $30,000 (supported spouse’s income) = $6,000
3) Since $6,000 is the lower of the two, this will be the temporary award of maintenance.
This formula is based on an income cap of up to $524,000. If the total income of both spouses exceeds $524,000, the court will consider other factors.
For a list of the factors courts consider, see DRL § 236 Part B (5-a) (C) (2) (a).
If the court finds that the amount calculated using the above formula is “unjust or inappropriate,” other factors can be taken into consideration, such as:
If a court determines that the calculated amount is “unjust or inappropriate” and finds that a deviation is appropriate, it must identify the adjusted amount, the reasoning for the amount and the factors it considered in a written order.
For a full list of the factors courts consider when a temporary maintenance award is found to be “unjust or inappropriate,” see DRL § 236 Part B (5-a) (e) (1).
Courts calculate post-divorce maintenance awards based on a number of factors; unlike temporary maintenance, there is no fixed formula used. The factors considered are:
Post-divorce maintenance awards are final orders by the court and 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.
For a temporary maintenance guidelines worksheet click, here
For a temporary spousal maintenance guidelines calculator click, here
For more information on maintenance, see Maintenance in New York, by Jenn Yadegari.