Oftentimes during a divorce, one party makes a claim for alimony.
Alimony, the monetary support of a spouse after separation or divorce, is ordered by the courts in certain situations after a review of many factors. Alimony is called “spousal maintenance” in New York.
When one spouse makes more money than another spouse, the spouse who earns less is deemed the "dependent" spouse, and the spouse who earns more is deemed the "supporting" spouse. In this case, alimony, or spousal maintenance, may be paid by the supporting spouse to the dependent spouse. For example, if one spouse is making $200,000 a year while the other is making $40,000 a year, there is a good chance the former will pay some form of maintenance to the latter.
However, maintenance isn't always ordered. The dependent spouse must be substantially dependent on the income of the other spouse for a judge to order spousal support. The spouse is considered substantially dependent if they would be unable to maintain their married lifestyle with that source of income.
Determining Spousal Maintenance
New York has a formula that is used as a guideline by the Courts to determine how much someone should pay or receive in spousal maintenance. These formulas are based upon the incomes of the spouses. In addition to these formulas, the Courts take several factors into account in determining whether to order spousal maintenance, such as:
- The income of both spouses.
- The number of years the couple was married.
- The couple’s lifestyle before filing for divorce.
- The age of both spouses and their current health.
- Earning capacity by the dependent spouse.
- Physical or emotional abuse by one spouse to the other.
- The care of other family members (i.e., parents) who live in the home or require assistance.
- Non-monetary contributions of either spouse to the marriage.
- Equitable distribution.
- The children’s living arrangements. Typically, the spouse who receives maintenance will also be the one who receives child support. But this isn’t always the case.
- Excessive spending or gifting of marital property by either spouse; this may include sales or transfers made just before filing divorce.
- Any inheritance that a spouse is set to receive.
Types of Spousal Maintenance
There are two types of spousal maintenance in New York State:
1. Temporary Maintenance
Temporary maintenance is paid during pending cases. The supporting spouse provides financial assistance to the dependent spouse during the case on a temporary basis, with the understanding that the maintenance may end or be altered by a judge's final order.
2. Post-Divorce Maintenance
Post-divorce spousal maintenance may be awarded by a judge once the divorce is finalized. The remarriage of the dependent spouse or the death of either spouse will end the arrangement. In certain cases, the spouses may also agree on a date for maintenance to end or the judge may set a date when payments will cease.
The formulas used by the Courts to set the guidelines for maintenance are different for Temporary Maintenance and Post-Divorce Maintenance. There is also a calculation about the length of the post-divorce maintenance, depending upon the length of the marriage. The Courts are permitted to deviate from those guidelines so long as the Court explains its reasoning.
If you are considering a divorce, please contact an attorney who works on spousal maintenance cases in New York. The laws regarding maintenance can be quite complicated and difficult to navigate, and a divorce attorney will work in your best interests.
Sunshine & Feinstein, LLP, 666 Old Country Road, Suite 605, Garden City, NY 11530. (516) 742-6444. This is Attorney Advertising.
