Spousal Maintenance

What is spousal maintenance?

Spousal maintenance may be awarded when a couple divorces.  Spousal maintenance is a periodic payment from one former spouse to another intended to assist the less-monied spouse in becoming self-supporting or in maintaining the lifestyle he or she enjoyed during the marriage.  Spousal maintenance may be awarded by a court or agreed to by a divorcing couple in a validly executed settlement agreement or separation agreement.

There are two types of spousal maintenance: temporary maintenance, which may be awarded during the pendency of the divorce action and post-divorce maintenance, which may be awarded after the finalization of the divorce.

Spousal maintenance is gender neutral; both men and women have been awarded temporary and post-divorce spousal maintenance awards

How long does spousal maintenance last?

Post-divorce spousal maintenance awards range in duration from as few as several months up and to lifetime maintenance.  Temporary maintenance may be awarded during the pending divorce action and may last for the entire duration of the action.

How is the amount of temporary maintenance awards determined?

In October 2010, along with the adoption of No-Fault Divorce in New York, the New York state legislature adopted a formula for the calculation of temporary maintenance.

The New York Domestic Relations Law sets forth a formula for determining the presumptive amount of temporary maintenance awards based on the payor spouse’s income up to $524,000.00.

The formula provides that where the payor spouse’s income is $524,000.00 or less, the presumptive amount of maintenance will be the lesser of two numbers: (A) 30% of the Payor’s CSSA income minus 20% of the Payee’s CSSA income; or (B) 40% of total spousal income minus Payee’s CSSA income.  Deviation from the presumptive amount is permitted at the court’s discretion where the presumptive award would be “unjust or improper” based on seventeen statutorily defined factors:

1. The standard of living of the parties established during the marriage;
2. The age and health of the parties;
3. The earning capacity of the parties;
4. The need of one party to incur education or training expenses;
5. The wasteful dissipation of marital property;
6. The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
7. The existence and duration of a pre-marital joint household or a pre-divorce separate household;
8. 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 section four hundred fifty-nine-a of the social services law;
9. The availability and cost of medical insurance for the parties;
10. The care of the children or stepchildren, disabled adult 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;
11. The inability of one party to obtain meaningful employment due to age or absence from the workforce;
12. The need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
13. The tax consequences to each party;
14. Marital property subject to distribution pursuant to subdivision five of this part;
15. 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;
16. 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
17. Any other factor which the court shall expressly find to be just and proper.

In the case where the payor’s income exceeds the statutory cap of $524,000.00, the Domestic Relations Law provides nineteen factors by which a court may determine, in its discretion, in determining any additional award of temporary maintenance based on the income above $524,000.00, as follows:

1. The length of the marriage;
2. The substantial differences in the incomes of the parties;
3. The standard of living of the parties established during the marriage;
4. The age and health of the parties;
5. The present and future earning capacity of the parties;
6. The need of one party to incur education or training expenses
7. The wasteful dissipation of marital property;
8. The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
9. The existence and duration of a pre-marital joint household or a pre-divorce separate household;
10. 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 section four hundred fifty-nine-a of the social services law;
11. The availability and cost of medical insurance for the parties;
12. The care of the children or stepchildren, disabled adult 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;
13. The inability of one party to obtain meaningful employment due to age or absence from the workforce;
14. The need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
15. The tax consequences to each party;
16. Marital property subject to distribution pursuant to subdivision five of this part;
17. 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;
18. 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
19. Any other factor which the court shall expressly find to be just and proper.

How is the amount and duration of post-divorce maintenance awards determined?

In addition to setting forth temporary maintenance guidelines, the Domestic Relations Law sets forth factors to be considered by a court in determining the amount and duration of post-divorce maintenance awards.

The factors to be considered for post divorce awards of maintenance are as follows:

1. The income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
2. The length of the marriage;
3. The age and health of both parties;
4. The present and future earning capacity of both parties;
5. The need of one party to incur education or training expenses;
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 section four hundred fifty-nine-a of the social services law;
8. The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
9. Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
10. The presence of children of the marriage in the respective homes of the parties;
11. The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity;
12. The inability of one party to obtain meaningful employment due to age or absence from the workforce;
13. The need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
14. The tax consequences to each party;
15. The equitable distribution of marital property;
16. Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
17. The wasteful dissipation of marital property by either spouse;
18. The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
19. The loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
20. Any other factor which the court shall expressly find to be just and proper.

Westchester Matrimonial attorneys are familiar with all aspects of spousal maintenance. Contact an experienced Westchester Matrimonial Attorney today to have all of your questions about spousal maintenance answered!