Alimony, Spousal Support and Spousal Maintenance

New York City Spousal Maintenance Lawyer

Under New York law, what used to be called "alimony" (and is still referred to by that term in the Internal Revenue Code) is called "spousal maintenance". There are two types, temporary spousal maintenance, which is supposed to enable the needy spouse to subsist until the trial, and permanent spousal maintenance, which ostensibly serves to economically "rehabilitate" the non-monied spouse, and might last until remarriage or the death of either spouse. The amount and duration of the spousal maintenance obligation depends largely on the pre-separation standard of living, the spouse's ability to become self supporting and the length of the marriage.

Temporary Spousal Maintenance

One of the most important steps that a monied spouse can take is to seek a generous temporary spousal maintenance order, to level the playing field, to help maintain the marital standard of living and to enable you to have your day in court. Until the case is ready for trial, the non monied spouse can get starved out, and the so-called monied spouse can be prejudiced, while each spouse pursues her or his day in court. The expertise of a diligent lawyer is essential to ensure the calculation of a fair temporary spousal maintenance award. The paying spouse needs to take care that too much money is not ordered to be paid temporarily, otherwise there can be Draconian consequences, which might result in the seizure of assets or incarceration. Then there may never be an inducement for the recipient to finish the case. I will also negotiate for permanent spousal maintenance during the divorce process.

When There Is Also A Child Support Award

New York has recently revamped its law on the subject of spousal maintenance. There are two formulas for "temporary" spousal maintenance, depending on whether there is also a child support award. Where there is also a child support award, the statutory formula requires the court to award temporary spousal maintenance without a showing of need:

Step 1. Compute 20% of the payor's income up to $ 175,000, minus 25 % of the payee's income.

Step 2. Add the payor's income up to $ 175,000 plus the payee's income. Then subtract 40% of the Payee's income.

Step 3. The lower of the two amounts, i,.e. from Step 1 and Step 2 is the guidelines amount of temporary spousal maintenance.

When There Is No Child Support Award

Where there is no child support award, the statutory formula to compute temporary spousal maintenance is slightly different:

Step 1. Compute 30% of the payor's income up to $ 175,000, minus 20 % of the payee's income.

Step 2. Add the payor's income up to $ 175,000 plus the payee's income. Then subtract 40% of the Payee's income.

Step 3. The lower of the two amounts, i,.e. from Step 1 and Step 2 is the guidelines amount of temporary spousal maintenance. from 30% of the first $500,000 of the payor's income.

Potential Upward Deviation Of A Temporary Spousal Maintenance Award

Where the payor's incomes exceeds $175,000 the court has the power to "deviate" upward and direct the payment of a higher amount of temporary spousal maintenance, based upon the presence of one or more of 13 enumerated statutory factors:

(1) The age and health of the parties;

(2) The present or future earning capacity of both 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 during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and 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, 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 household;

(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 as provided in New York Social Services Law § 459-a;

(8) The availability and cost of medical insurance for the parties;

(9) The care of children or step children, disabled adult children or step children, 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 party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;

(13) Any other fact which the court shall expressly find to be just and proper:

Potential Upward Deviation Of A Permanent Spousal Maintenance Award

Where the payor's incomes exceeds $175,000 the court has the power to "deviate" upward and direct the payment of a higher amount of permanent spousal maintenance, based upon the presence of one or more of 15 enumerated statutory factors:

(1) The age and health of the parties;

(2) The present or future earning capacity of both 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 during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and 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, 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 household;

(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 as provided in New York Social Services Law § 459-a;

(8) The availability and cost of medical insurance for the parties;

(9) The care of children or step children, disabled adult children or step children,

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 party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;

(13) The equitable distribution of marital property and the income or imputed income on the assets so distributed;

(14) Contributions and services of the party seeking spousal maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; and

(15) Any other fact which the court shall expressly find to be just and proper.

The Duration Of A Permanent Spousal Maintenance Award

In New York the Court decides the duration of a spousal maintenance award. The governing statute contains guidelines for its duration, depending upon the length of the marriage:

Zero to 15 years15 % to 30 % of the length of the marriage;
More Than 15 - 20 years30 % to 40 % of the length of the marriage;
More than 20 years35 % to 50 % of the length of the marriage.