In New York, the lower-income spouse may be entitled to spousal maintenance (also known as spousal support or alimony) from the higher-income spouse. Maintenance paid while the divorce action is pending is known as temporary or pendente lite maintenance. Post-divorce maintenance is maintenance that is paid to a spouse after the divorce is finalized.
New York has established formulas for determining the appropriate amount of “guideline” maintenance that takes into account the parties’ incomes and whether there are children of the marriage. The formulas are currently based on the paying spouse’s income up to $184,000 and the income of the spouse receiving maintenance.
The maintenance guidelines also establish the following suggested schedule to determine the duration of the maintenance payments, based on the length of the marriage, for how long the maintenance payments should continue:
- Marriage of 0-5 years: 15-30% of length of marriage
- Marriage over 15 years-20 years: 30-40% of length of marriage
- Marriage longer than 20 years: 35-50% of length of marriage
Parties are free to agree to a maintenance amount different than that generated by the formula but are required to state the reasons for not following the guidelines. Courts also can award spousal support above or below the guideline amount — and on income of the payor above the $184,000 cap — based on consideration of the factors in DRL 236(6)(e).
Those factors are:
- the age and health of the parties
- the present or future earning capacity of the parties, including a history of limited participation in the workforce
- the need of one party to incur education or training expenses
- the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded
- the wasteful dissipation of marital property, including transfers or encumbrances 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
- 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
- the availability and cost of medical insurance for the parties
- the care of children or stepchildren disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity
- the tax consequences to each party
- the standard of living of the parties established during the marriage
- the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage
- the equitable distribution of marital property and the income or imputed income on the assets so distributed
- the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party
- any other factor which the court shall expressly find to be just and proper
You can access the link to the New York State Child and Spousal Support Calculator here.