MAINTENANCE (FORMERLY CALLED ALIMONY) FOR A SPOUSE

 

There are twenty (20) factors a court must consider in arriving at the amount and duration of maintenance (formerly called alimony) for either husband or wife. The preamble to the twenty (20) factor states:

Except where the parties have entered into an agreement providing for maintenance, in any matrimonial action the court may order temporary maintenance or maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage, whether the party in whose factor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party had sufficient property and income to provide for his or her reasonable needs of the other and the circumstances of the case and of the respective parties. Such order shall be effective as of the date of the application therefore, and any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary maintenance which as been paid.

 

In determining the amount and duration of maintenance the Court shall consider:

1. The income and property of the respective parties including the distribution of marital property;

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;

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. [Misconduct may well impact upon the right to receive periodic payments, the amount and duration thereof.]

 

NOTE: However, the parties can enter into an agreement either before or after the marriage to provide for the amount and duration of maintenance and such agreement is binding provided its terms are fair and reasonable at the time the agreement was made and are not unconscionable at the time of the entry of the final judgment of divorce and providing further that the agreement does not relieve either party of liability to support the other in such a manner that the other person will become incapable of self-support and, therefore, is likely to become a public charge.

PLEASE NOTE that the law has recently changed relating to an award of temporary maintenance.

Temporary maintenance which is maintenance pending the litigation shall be governed by a guideline.

The Court will determine the award of temporary maintenance to be the lower number of the following two calculations:

Calculation A: 30% of Payor's Income minus 20% of Payee's Income.

Calculation B: 40% of Combined Income minus Payee's Income.

However, where the guideline amount (the lower number of the above calculations) would reduce the payer's income below the self-support reserve ($14,702); the award is the payor's income minus the self-support reserve.

Income Exceeds $500,000: If the payor's income exceeds $500,000, the Court considers the 19 factors set forth in DRL §236 Part B(5-A)(C)(2)(A) in determining any additional award of temporary maintenance based on the income above $500,000.

Adjustment of Award: The Court may adjust the award if it finds the award is unjust or inappropriate based on consideration of 17 factors set forth in DRL.§236 Part B(5-A)(E)(1).