Alimony Guidelines in New York

If you've ever talked with someone about their divorce experience, likely, you've also heard of alimony—sometimes also referred to as "spousal support" or, in New York, as "spousal maintenance." Alimony is a payment that one spouse makes to the other spouse during or after a divorce.

The court's goal in awarding alimony is to allow both spouses to live the same or similar lifestyle as they did while they were married. Sometimes maintenance is also used as a stepping stone for the spouse who needs job training or additional education before entering the workforce. The type, duration, and amount of spousal support depend on the specific facts of your case.

Types of Alimony Available in New York

The court will determine the type of spousal maintenance in your case after evaluating a variety of factors. Typically, the court will award one of the following types:

• temporary
• rehabilitative, or
• permanent.

Temporary maintenance—or "alimony pendente lite"—is paid to a spouse during the divorce process and ends when the judge issues a final order of divorce or creates a more permanent award. Each support case depends on a variety of factors, but the court will first use a calculator to determine the amount of temporary maintenance. It's important to understand that the judge has discretion when deciding the amount of temporary support.

Rehabilitative maintenance is common after a divorce, especially if the spouses have a significant difference in income and job skills. The court will grant rehabilitative alimony in cases where one spouse doesn't have proper job skills or education to enter the workforce and support themselves after the divorce. Rehabilitative support is temporary and common in cases where one parent stepped out of the workforce to raise a family.

Permanent support is a payment from one spouse to the other after the court finalizes the divorce. Typically, the court will determine how long relief will last based on a variety of factors, including the length of the marriage. Courts generally reserve permanent alimony for:

• long marriages
• cases where there's a large discrepancy in each spouse's income, and/or
• the other spouse is in poor health, unable to work, or otherwise can't become self-sufficient.

Who Qualifies for Alimony in New York?

Either spouse filing for divorce in New York can request alimony. However, whether the court grants the request will depend on the financial status of each party, the need of the requesting party, and other various factors.

Calculating Temporary Spousal Maintenance

Since 2010, New York law requires courts to use a statutory formula to calculate temporary support. The fixed formula helps to keep temporary awards consistent and uniform, rather than leaving it solely up to the judge.

In 2019, the court uses this formula to calculate temporary support, which considers:

• each party's income (up to $184,000 for the paying spouse), and
• whether the paying spouse will also pay child support.

To create the final award, the court will follow one of three models:

• subtract 25% of the payor's income from 20% of the payee's income
• subtract 20% of the payee's income from 30% of the payor's income, or
• multiple the total income of both spouses by 40% and subtract the support spouse's income from that number.

The court will use the lowest number from the three models and divide it by the frequency of the payment (for example, dividing the final award by 52 creates a weekly award.)

New York caps a paying spouse's income at $184,000 for support purposes, meaning the court won't include additional income for the calculation unless the judge finds other reason to increase the award. Some of the factors the judge will consider when the payor's income exceeds the cap, include:

• the age and health of the parties
• the present or future earning capacity of the parties
• child support payments
• the standard of living established during the marriage
• the length of the marriage, and
• any other factor the court finds to be just and proper.

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.

Calculating Post-Divorce Alimony

When calculating post-divorce maintenance, the court will utilize the same calculator as temporary support to create a starting point for the award. However, regardless of the calculation, judges have complete discretion to order less or more support, depending on your case.

Typically, judges will consider a variety of factors before creating a final award, including:

• 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)
• the existence of a pre-marital joint household
• 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
• whether there are disabled children, adult children, elderly or in-laws that require care
• additional child-related costs, such as schooling, daycare or medical expenses
• contributions made by the receiving spouse (for example, if the spouse was a homemaker and did 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
• any transfer of property (for example, where one spouse hides assets), and
• any other factor the court believes is relevant to the decision.

What's the Duration of Spousal Maintenance?

Alimony can be "durational" or "nondurational" depending on your case. The court orders durational maintenance for a fixed period, usually in cases where the supported spouse can become self-supporting after several years. In New York, the court may determine the duration of post-divorce maintenance by using the following guidelines:

• for marriages lasting 0-15 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, or
• for marriages more than 20 years in duration, the court should order support to last between 35%-50% of the length of the marriage.

Nondurational support is permanent and typically doesn't end until (1) either spouse dies (2) the recipient spouse remarries, or (3) the recipient spouse habitually lives with a partner while representing that person as a spouse.

Alimony Payments

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 execution or 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, which is when the paying spouse 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.

Tax Consequences

For divorces finalized before December 31, 2018, spousal maintenance payments are deductible 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 by the payor spouse and not counted as income for the recipient spouse.