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How Is Spousal Support Determined in New York?

Under New York law, the determination of spousal support depends on whether the parties are married, or in the process of obtaining a divorce. For example, spousal support is money that is paid to a spouse during the marriage and can last indefinitely throughout the duration of the marriage. Maintenance support (often referred to as alimony) is paid to a former spouse either while a divorce action is pending (“temporary maintenance”) or upon the dissolution of marriage. The amount and duration in which maintenance support will be awarded is set forth defined in the judgment of divorce, based on the parties’ agreement or the judge’s decision after trial. So how is spousal and/or maintenance support awarded in New York?

There are two ways in which spousal support can be awarded: 1) In a family court proceeding for spousal support; or 2) As a component of a judgment of separation. Note: spousal support terminates when a judgment for divorce is granted.

Supreme Court judges, who handle all divorce matters in New York, Family law judges generally apply a formula to determine how much temporary maintenance support will be awarded. The formula provides that maintenance should be the lesser of either of the following: 1) 30% of the higher-earning spouse’s income, minus 20% of the lower-earning spouse’s income; or 2) 40% of their combined income, minus the lower-earning spouse’s income. This formula results in the “presumptive” amount of temporary maintenance. If the judge believes that the presumptive amount is unjust or inappropriate, he or she may deviate from them, but the judge must include the reasons for the deviation in the decision.

Several factors are considered to determine the duration and amount of post-divorce permanent maintenance support to be awarded to a spouse upon divorce:

 

  1. The length of the marriage;

  2. The age and health of the parties;

  3. The assets and debts of each spouse;

  4. The present and future earning capacity of both spouses;

  5. Future education and training-related needs of a party;

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

  7. Acts by one part against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment (example: 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;

  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 during the marriage in the respective homes of the parties;

  11. The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that have inhibited or continue 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 married 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 the dissolution of 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.

Spousal or Maintenance Support Modification

When spousal support is awarded in Family Court, the support magistrate judge may or may not assert any specific duration of time for support to be awarded. Thus, in order to terminate or modify a spousal support order, a party will have to petition the court for a modification/termination. A person can also request for maintenance support to be modified as well by petitioning the court.  If the Judgment of Divorce grants the Family Court concurrent jurisdiction, a party may file the modification petition in Family Court.  If the judgment does not grant concurrent jurisdiction, a party must go to Supreme Court to modify the award.

 

You may want to consider going to mediation or utilizing the collaborative divorce approach to obtain a spousal support or maintenance agreement.  Contact me for more information on how to draft a spousal and/or maintenance support agreement. As an experienced Suffolk County divorce attorney who has handled divorces for over 22 years, I have the ability to help you determine the best course of action in your individual situation. Call 631-676-7100 to schedule a free consultation if you are filing for divorce in New York.

Sources

Temporary Spousal Maintenance Guidelines Calculator (Includes Low Income Adjustment)

 

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