Maintenance & Spousal Support (Alimony)

In New York State "Alimony" is referred to as Maintenance or Spousal Support.

Maintenance payments are for a definite or indefinite period of time and are granted in order to meet the reasonable needs of a party to a matrimonial action. The purpose of having a spouse pay maintenance is to provide the recipient spouse an opportunity to achieve independence. In marriages of long duration, or where the former spouse is, and has been, out of the labor market, that the recipient spouse often lacks sufficient resources, or has sacrificed her/his business or professional career to serve as a parent and homemaker and "maintenance" is necessary to achieve financial independance.

Factors considered when determining when a spouse is entitled to maintenance are as follows:

• The standard of living of the parties during the marriage;

• The age and health of the parties;

• The earning capacity of the parties;

• The need of one party to incur education or training expenses;

• The wasteful dissipation of marital property;

• A transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

• The existence and duration of a pre-marital joint household or a pre-divorce separate household;

• A cts 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;

• The availability and cost of medical insurance for the parties;

• The care of children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;

• The inability of one party to obtain meaningful employment due to age or absence from the workforce;

• The need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;

• The tax consequences to each party;

• Marital property subject to distribution;

• The reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;

• The contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

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

Temporary Maintenance Awards

As of October 12, 2010, there will now be guidelines to temporary awards of alimony/maintenance, which would only result in an award when there is an income gap between the two parties such that the less-monied spouse's income is less than two thirds of the more monied spouse's income.

For instance, if the payor's annual income is $90,000 a year, the guidelines will only result in an award if the payee's annual income is less than $60,000. The numerical guideline is only applied to the payor's income up to $500,000 of her/his income, with a set of factors to be applied by the court to determine any additional amount of temporary maintenance on the payor's income above this $500,000 cap. The guidelines also include protections for individuals whose annual income is less than the self-support reserve (135% of the Federal Poverty Guidelines - currently $14,620/year). Determining the guideline amount, the court must compare two calculations of the spouses' annual incomes. For both of these calculations, any income of the payor's that exceeds $500,000 is not included.

The formula for calculating temporary maintenance awards is as follows:

• 30% of the payor's income minus 20% of the payee's income, OR

• 40% of the combined income of the two spouses. The payee's income is then subtracted from this figure.

The court must select the lesser of these two figures as the guideline amount. If the payor has an annual income exceeding $500,000, the judge may adjust the amount.

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