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.

What Types of Alimony (or Maintenance) are Available in New York?

“Pendente Lite” or temporary maintenance

“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

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.

What Guidelines do Courts use When Determining Alimony (or Maintenance) in New York?

Calculating “pendente lite” or temporary maintenance

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).

Deviating from the guideline

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:

• the spouses’ standard of living during the marriage
• the age and health of both spouses, and
• both spouses’ earning capacities (meaning how much income they could earn based on education, skills, job history and local employment opportunities).

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).

Calculating post-divorce maintenance

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:

• 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, day care or medical expenses
• contributions made by the receiving spouse (for example, if the spouse was 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.

Termination of maintenance

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.

Resources

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.

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