Spousal Support (Maintenance) in New York

Spousal Support (Maintenance) in New York

Spousal Support (Maintenance) in New York
By: Sharon L. Dyer, Esq.

Spousal Support in New York is called maintenance. Many years ago it was referred to as “alimony”. Today maintenance is generally determined by a formula that compares the income of the spouses, with the higher income spouse paying maintenance to the lower income spouse. There are basically two formulas in New York for maintenance. The lower formula is used when child support is also being paid by the higher income spouse to the lower income spouse, and the higher formula is used when there is no child support being paid by the higher income spouse to the lower income spouse. The formulas are described in detail in the “Notice of Maintenance Guideline” which is attached.

The statute also contains advisory guidelines for the duration of maintenance based upon the length of the marriage. For example, if the length of the marriage is zero to fifteen years, the advisory percentage of the length of the marriage for which maintenance is payable is 15% to 30%. For more than fifteen but less than twenty years of marriage the percentage is 30% to 40% of the length of marriage. For more than twenty years it is 35% to 50%.

By way of example, if a marriage was ten years long at the time of divorce, maintenance would be payable for 1.5 to 3 years based upon 15% to 30% of the length of the marriage. If the length of marriage was nineteen years, maintenance would be payable for 5.7 to 7.6 years based upon 30-40% of the length of marriage. If the length of marriage was thirty years, maintenance would be payable for 10.5 years to 15 years based upon 30-40% of the length of marriage.

The guideline formula for maintenance is applicable to $178,000 of income for the payor - higher income spouse. Although this is an income “cap” for the guideline amount of maintenance, a Judge does have discretion to order maintenance above and beyond that amount after considering various enumerated factors. A Judge can choose not to apply the formula and instead decide an appropriate amount on a case by case basis, setting forth the reasons after consideration of fifteen factors. The factors are:


1. The age and health of the parties.

2. The present or future earning capacity of the parties, including a history of limited participation in the workforce:

3. The need of one party to incur education or training expenses.

4. The termination of a child support award before the termination of the maintenance award when the calculation fo maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded.

5. The wasteful dissipation of marital property by a party, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration.

6. The existence and duration of a pre-marital joint household or a pre-divorce separate households.

7. Acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence.

8. The availability and cost of medical insurance to the parties.

9. The care of children, stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity.

10. The tax consequences to each party.

11. The standard of living of the parties established during the marriage.

12. The reduced or lost earning capacity of the spouse receiving maintenance as a result of having forgone or delayed education, training, employment or career opportunities during the marriage.

13. The division of marital property in the divorce and the income or imputed income on the assets so distributed;

14. The contributions and services of the spouse receiving maintenance as a spouse, parent, wage earner and homemaker to the career or career potential of the other party; and

15. Any other factor which the court shall expressly find to be just and proper.

Many people mistakenly believe that the amount of maintenance will be different depending on who is “at fault” in the divorce. This is not true. Firstly, these days the vast majority of all divorces in New York are based upon no fault grounds. Even for those that are technically based upon fault grounds, fault will not have a bearing on the amount of maintenance to be paid except in very rare and egregious circumstances. Also, maintenance awards are modifiable upon a showing of a substantial change in circumstances, such as loss of job, retirement, and the like.

If the parties are married and there is no divorce action pending but they are living apart, a spouse can request maintenance by petitioning the local family court. However, if a divorce action is pending, maintenance is then determined as part of a divorce action in one of New York’s Supreme Courts that hears divorce actions.

Parties may mutually agree not to apply New York’s Maintenance Guidelines if they wish. They can execute an Agreement setting forth the amount of maintenance and duration that will be paid by mutual consent. An attorney should be engaged to see that any such Agreement properly complies with technical provisions. Our attorneys can assist you with that as well as representing you should you be involved in a maintenance matter as part of a Family Court Support or Supreme Court Divorce action.

Notice of Maintenance Guideline

If your divorce was commenced on or after January 25, 2016, this Notice is required to be given to you by the Supreme Court of the county where your divorce was filed to comply with the Maintenance Guidelines Law ([S 5678/A. 7645], Chapter 269, Laws of 2015) because you may not have counsel in this action to advise you. It does not mean that your spouse (the person you are married to) is seeking or offering an award of “Maintenance” in this action. “Maintenance” means the amount to be paid to the other spouse for support after the divorce is final.

You are hereby given notice that under the Maintenance Guidelines Law (Chapter 269, Laws of 2015), there is an obligation to award the guideline amount of maintenance on income up to $178,000 to be paid by the party with the higher income (the maintenance payor) according to a formula, unless the parties agree otherwise or waive this right. Depending on the incomes of the parties, the obligation might fall on either the Plaintiff or Defendant in the action.

There are two formulas to determine the amount of the obligation. If you and your spouse have no children, the higher formula will apply. If there are children of the marriage, the lower formula will apply, but only if the maintenance payor is paying child support to the other spouse who has the children as the custodial parent. Otherwise the higher formula will apply.

Lower Formula

1-Multiply Maintenance Payor’s Income by 20%
2-Multiply Maintenance Payee’s Income by 25%
Subtract Line 2 from Line 1 = Result 1
Subtract Maintenance Payor’s Income from 40% of Combined Income* = Result 2
Enter the lower of Result 2 or Result 1, but if less than or equal to zero, enter zero

THIS IS THE CALCULATED GUIDELINE AMOUNT OF MAINTENANCE WITH THE LOWER FORMULA

Higher Formula

1-Multiply Maintenance Payor’s Income by 30%
2-Multiply Maintenance Payee’s Income by 25%
Subtract Line 2 from Line 1 = Result 1
Subtract Maintenance Payor’s Income from 40% of Combined Income* = Result 2
Enter the lower of Result 2 or Result 1, but if less than or equal to zero, enter zero
THIS IS THE CALCULATED GUIDELINE AMOUNT OF MAINTENANCE WITH THE HIGHER FORMULA

*Combined Income equals Maintenance Payor’s Income up to $178,000 plus Maintenance Payee’s Income

Note: The Court will determine how long maintenance will be paid in accordance with the statute.

 

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