Spousal Support Information

What is Spousal Support?

Spousal support is also called "Maintenance" and was formerly called "Alimony. The Court is likely to award no support when the remarriage is short and the parties are young and self supporting.

However, life time awards of maintenance are usually granted after a trial where the parties have been married for a long period of time and the parties are advanced in years, and there is a disparity in income, or if one of the parties is in poor health and unable to be self supporting or to become self supporting in the near future.

There is also such a thing as rehabilitative maintenance which is designed to provide a term of support to help the spouse to retrain or educate themselves so they can get a job.

There are several factors that the Court must consider in determining the amount of maintenance, whether maintenance will be warded at all, and for how long. The parties can always agree to maintenance in a separation agreement or prenuptial agreement. Be sure the agreement is prepared with the advise or counsel of an experienced New York Divorce Attorney as there are strict rules that must be adhered to in order to make it a binding enforceable agreement.

The Court must consider the standard of living of both spouses that was established during the marriage, the circumstances of the each particular case whether the spouse who is getting the award lacks sufficient means to provide for his/her living expenses and needs and whether the party paying the maintenance has the ability to pay. There are specific statutory factors which must be considered in determining amount and duration are: The income and property, the duration of the marriage and the age and health of each spouse the earning capacity of each spouse, the ability to become self supporting, having foregone an education or career opportunities during the marriage, children, tax consequences to each spouse, the transfer of property in contemplation of a divorce, the contributions or services made as a housewife, parent, wage earner or homemaker, to the career or license or business or enhanced earnings, the wasteful dissipation of assets and any other relevant factor including separate property, and egregious fault which must rise to a level that would shock the consciousness of the court. Ordinarily fault is not the major concern in awarding spousal support. Do I get more money if my spouse is at fault? Marital fault is irrelevant under the Equitable Distribution Law of New York and should be considered only when it shocks the conscience of the court. It is only one of many things to consider. In some counties egregious marital fault comes into play in fixing maintenance awards, and some courts will disallow spousal support if the spouse is cohabiting with and being supported by another person.

Unless you otherwise agree in a separation agreement, your support from your spouse ends upon remarriage. Durational maintenance is more commonly awarded where the spouse seeking support is relatively young and healthy and is not required to care for young children. The function of durational maintenance is to allow the spouse to reach independence. Where a marriage is of short duration and especially if the parties have no children, there will probably be rehabilitative (durational) maintenance of some kind, the amount an duration of which is discretionary with the Court based on the above factors. Also, the pre-divorce standard of living must also be considered under the case of Hartog vs. Hartog, and is a mandatory factor established by case law in determining the amount and duration of the maintenance award. If permanent maintenance has been awarded, the recipient spouse is usually unemployable or sick and the other spouse is well off. SO be sure you consult with a New York matrimonial lawyer well versed in these topics before you embark upon your spousal support claim.

Breaking News on Spousal Support as of June 2016

New York has a new way to determine spousal support. They do so through a complicated formula. This formula determines temporary and final post judgment spousal support.

As for temporary support, while your divorce is pending the higher earning spouse will pay the lesser earning spouse a certain amount of spousal support. This is done in order to "even the playing field" of the parties during divorce litigation and to protect the non-monied spouse.

In Family Court this law is inapplicable. There the Family Court Act provides that a support magistrate or judge can Order spousal support that is fair and reasonable. Likely this will mean "needs based" and ability to pay. The Family Court Act provides that a support magistrate or judge can Order "a fair and reasonable sum" ... having due regard to the circumstances of the respective parties.. FCA §412,

As for any spousal support award that is temporary, regardless of which court you are seeking relief from, temporary support ends when the case is concluded. So you have to ask for BOTH temporary spousal maintenance and post judgment spousal maintenance.

When you arrive at the spousal support amount the Court, as to the income to be charged, the formula will consider the payers. and payees IRS returns, worker's compensation and social security. Incoming producing property is also included in the equation. Also a court can impute income if a spouse is regularly receiving money by friends and family. The Court has discretion if the formula provides an unjust result. The factors to be considered in a considered written decision by the court must include the following. Standard of living established during the marriage and the age and health of the parties; the earning capacity of the parties; need to incur education expenses; wasteful dissipation of marital property; transfer or encumbrance of marital resources or assets; whether there is a pre-marital joint household; acts performed by a spouse that inhibited that spouse from earning money in the future; domestic violence; cost of insurance; other children such as step-children, disabled adult children or elderly parents; inability to get a job due to advances age; over the top expenses to be paid for the children for day care, education or medical treatment; tax consequences; equitable distribution award; subjugation of a parties' ability to pursue employment or other opportunities due to marital obligations and for any other factor the court deems just.

As to Health insurance, this is an add-on spousal support item. Thus, if health insurance is already in place during an action the spouse may not cancel it during the proceeding. And indeed, Family Court can even Order your spouse to secure health insurance for dependents.

As for final spousal support, the law now provides for post-judgment spousal support to be governed by NY divorce law. This is called post-divorce maintenance and same is determined as per the new formula.

This will end upon death or remarriage of the parties.

Revolutionary Law Change in New York as of June 2015

This law drastically changed how a Court will determine spousal support AFTER a judgment of divorce has been entered. Prior to this law, says a top New York Divorce and Custody lawyer Lisa Beth Older, the Court had the sole discretion as to whether as how much support would be paid to a spouse after a divorce trial.

As to equitable distribution, a breaking phenomenon in the new law which is unrelated to spousal maintenance is that   is that a court no longer has to enhanced earning capacities derived from professional license. Before this law the Court had to consider value and distribute said value between the parties a spouse’s enhanced earning capacity from achieving a license, a degree, or the enhancement of their career.

“One of the initiators of the law was Justice Sunshine who sits in Brooklyn Supreme Court and decides many Brooklyn Divorce Lawyer’s cases” says Lisa Beth Older, Esq., one of New York's top Divorce and Custody lawyers.

As to calculating amount and duration of temporary and final awards of spousal support or maintenance, formally known as alimony this formula dictates how a case should be settled ort determined after trial.    The Courts may deviate from the formula under certain conditions.  It is similar in nature to the New York Child Support Standards Act in 1989.

The following is the formula to be considered in arriving at the fair and proper amount:

1. There is a “cap” on the payor’s income used for the maintenance formula of $175,000, but the Court can increase the cap where appropriate and just.   This lowers the cap from $543,000 to $175,000 as to post-divorce maintenance awards.
2. There are two formulas. One of them is for child support that will be paid and one where child support will not be paid.  Those formulas are as follows: a. With child support where the maintenance payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance; maintenance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
3. You calculate maintenance and then Child support is calculated using the income of the payor after subtracting the maintenance and the income of payee income including maintenance award. The court may adjust the guideline if it finds it to be unjust or inappropriate after consideration of factors which must be set forth in their final decision on the case.   If income over the cap, additional maintenance may be awarded again to be set forth in the Court Decision on Spousal Support. 
4. As to temporary maintenance, the court can allocate the obligation for family expenses while the divorce action is pending.
5. For the purpose of final  post-divorce maintenance the Court can include income-producing property to be equitably the distributed.
6. New factors in post-divorce maintenance will include: termination of child support, income or imputed income on assets being equitably distributed, etc.
7. The duration of post-divorce maintenance is governed by percentages. For marriages of zero to 15 years, maintenance is 15% to 30% of the length of the marriage; for marriages of more than 15 up to 20 years, maintenance is 30% to 40% of the length of the marriage; for 20 year or more marriages, maintenance would be awarded for 35% to 50% of the how long you were married. However, in certain circumstances non durational maintenance may be ordered. 
8. Duration of maintenance must consider anticipated retirement assets, benefits and retirement eligibility age.
9. Retirement will be a ground for modification of post-divorce maintenance if significant. 

The formula takes into account whether or not the spouse is charged with paying child support.

Temporary Spousal Maintenance

It is awarded in NY Supreme Court in a New York Divorce Case whether in any County such as Westchester County or Kings County of New York County, upon written application of the spouse that applies for it. It is applied for the pendency of the divorce and terminates upon Judgment of divorce unless otherwise agreed by the divorcing parties.

This is a complex statutory formula, and a guideline which most courts follow. However, under a New Law passed in January 2016 a Court may deviate from the temporary support guidelines but must set forth a reason why in their decision. The New York Divorce Court may also make additional awards for payments that need to be made during the divorce such as mortgage payments or cell phone bills. A New York divorce client may arrive at the amount of spousal support with a New York spousal maintenance calculator which can be found on the New York Government Website.

Here is how it works:
$100,000 payor
$50,000 per year payee
a) 30% of the income of higher income spouse = $30,000
b) 20% of the income of the lower income spouse is subtracted from that figure in a) ($30,000 . $10,000) = $20,000 per year
or
c) figure 40% of the total income of the parties = $60,000
d) Subtract the lower income ($60,000 . $50,000 = $10,000 per year

Thus, the award under this scenario would be the lesser of (b) or (d), or $10,000 per year.

Post Judgment Final New York Spousal Support (Formerly called New York Alimony)

These provisions are not retroactive although I have seen Court apply them to their ongoing case load.

The New Law tells us how to calculate post judgment divorce maintenance formerly known as alimony. This calculation is again being formulated and suggests that the longer the marriage the longer the duration will be for an award of New York spousal support. The new law is also more fair because it has two distinct formulas. One is configured where there are no children and the other is configured where there are children involved. The law is presumptive but the court can deviate therefrom so long as it lists its reasons in its Decision.

The law on New York support in NY Divorce cases also takes into account retirement age and post judgment retirement income. The calculator for this purpose is different than the calculations made on a temporary spousal support claim.

Warning: The information contained herein is not intended to substitute for legal advice from your own retained lawyer in new york state. This article is merely informational in nature, and is based upon one attorney’s knowledge of the practice of family law, matrimonial law, domestic violence, child custody, child support and orders of protection.

Retain counsel before you do anything to affect your marital status and follow the advice of the lawyer you retain, not what is written herein.