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Determining Maintenance in New York

Maintenance, formerly called alimony, is financial support one spouse provides for the other during and/or after divorce proceedings. Maintenance is used to allow the supported spouse to maintain the lifestyle to which he or she is accustomed and to provide him/her with an opportunity to ‘rehabilitate’ and develop the skills or undergo the training necessary to be financially self-sufficient.

In New York, there are two types of maintenance that may be granted: pendente lite (temporary) and post-divorce maintenance. Pendente lite maintenance is provided to the spouse while the divorce proceedings are pending to provide immediate financial support. It takes into account the spouse’s reasonable needs and their standard of living prior to the divorce. Pendente lite maintenance ceases when a judge makes a final order of maintenance, the parties reach a temporary agreement, or the parties reach a settlement modifying the maintenance.

Post-divorce maintenance is awarded after the divorce proceedings have concluded. The length of time that a spouse can be granted maintenance varies. In 2015, the New York State Legislature passed “advisory” guidelines that it suggested to family law courts in determining how long a party should receive maintenance:

Duration of marriage

Duration of maintenance

0 to 15 years

15-30% length of marriage

>15 to 20 years

30-40% length of marriage

>20 years

35-50% length of marriage

Post-divorce maintenance may end when either spouse passes away, the supported spouse remarries, or if the supported spouse is habitually living with someone or is holding him or herself out to be husband and wife of that person.

In order to be granted spousal support by the court, the individual must make a motion to ask for it. In deciding whether or not maintenance is appropriate, a judge will take a look at the parties’ incomes, and apply the statutory formula (discussed below). After the calculations are completed, the Court may also look at a variety of other factors to determine whether that amount is appropriate, including the needs of the spouse who is applying for support and whether or not the other spouse has the resources to support them. The court may also take a variety of factors into account when making a maintenance determination, including length of marriage, age and health status of each spouse, the current and future earning capacity, equitable distribution of property, and whether or not the spouse requesting maintenance is able to support him or herself. Finally, the court may also take into account whether or not the actions of one spouse, such as abuse, prevented the other from obtaining or retaining employment or inhibited their earning capacity.

For spouses who filed for divorce on or after January 25, 2016, they must now comply with Maintenance Guidelines Law ([S. 5678/A. 7645], Chapter 269, Laws of 2015). Under the ‘new’ law, “there is an obligation to award the guideline of maintenance on income up to $178,000 to be paid by the party with the higher income (the maintenance payor) to the party with the lower income according to a formula,” unless the spouses choose to waive this right. The obligation may fall on the defendant or the plaintiff in an action, depending on each spouse’s income.

There are two formulas, provided by the New York courts, to determine the amount of the maintenance obligation. If the spouses do not have children, the higher formula will apply. If the spouses have children, the courts will use the lower formula, but only if the spouse with the higher income is paying child support to the other spouse who is the custodial parent of the children. If this is not the case, the higher formula will be used. A court will determine how long maintenance will be paid in accordance with the statute.

Lower Formula (payor is proving child support an is not the custodial parent)

Line 1-Multiply Maintenance Payor’s Income by 20%

Line 2- Multiply Maintenance Payee’s Income by 25%

Subtract Line 2 from Line 1: = Result 1

Subtract Maintenance Payee’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.

 

Higher Formula (child support is not provided by the payor)

Line 1-Multiply Maintenance Payor’s Income by 30%

Line 2- Multiply Maintenance Payee’s Income by 20%

Subtract Line 2 from Line 1= Result 1

Subtract Maintenance Payee’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

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

When considering whether to file for divorce, it is important to consider maintenance as well. Maintenance can affect the financial future of both spouses during and after divorce proceedings. The New York divorce lawyers at Blodnick Fazio & Associates PC are experienced in handling all aspects of matrimonial law, including maintenance (alimony). Our experienced lawyers are dedicated to representing and protecting our client’s best interests during their divorce proceeding. For more information or to schedule a consultation at our New York family law firm, call (516) 280-7105.

 

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Blodnick Fazio & Associates
1325 Franklin Ave.
Suite 555
Garden City, New York 11530
Tel: (516) 280-7105
Fax: (516) 280-7102