New York Spousal Maintenance Frequently Asked Questions
A. Spousal maintenance is sometimes referred to as alimony. New York Domestic Relations Law § 236 B(1)(a) defines maintenance as the payment of money from a current or former spouse to the other pursuant to a written agreement or a valid court order. In order to qualify as maintenance,
- There must be a payment in money which may include check, money order, wire transfer, or any other means to transfer cash.
- Payments must be between spouses or former spouses.
- Payments must be made pursuant to a written agreement or court order. Voluntary payments do not qualify as maintenance if there is no order or agreement.
A. In New York State, a married person may file a petition in Family Court seeking spousal support from a current husband or wife.Q. How often is spousal maintenance awarded when people divorce?
A. Spousal maintenance is awarded only about 10% of the time.Q. Can a man get spousal maintenance?
A. Spousal maintenance may be awarded to either men or women.Q. How much is paid for spousal maintenance?
A: A judge will begin the determination of spousal maintenance amount with one of two statutory formulas depending on whether or not child support will also be paid. There is a cap on the payer spouse’s income in the formulas, but if the payer’s income exceeds that cap, the court will then look at a number of other statutory factors in order to arrive at a just result. In fact, for the sake of fairness, the court may look at these factors even if the payer’s salary is less than the cap.
Statutory factors a New York judge may consider are
- Age and health
- Present or future earning capacity of the parties
- 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 if the formula taking child support into account was used to determine spousal maintenance
- The wasteful dissipation of marital property
- Whether and for how long the parties lived together before the marriage or apart before filing for divorce
- Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity including domestic violence
- Availability and cost of medical insurance
- Care of children and other family members during the marriage that inhibits a party's earning capacity
- Tax consequences
- Standard of living established during the marriage
- Reduced or lost earning capacity of the payee as a result of having forgone or delayed education or career opportunities
- Equitable distribution of marital property and the income from that property
- Contributions of the payee as a spouse, parent, wage earner and homemaker and to the of the other party
- Any other factor which the court shall expressly find to be just and proper.
A. Both parties must be completely transparent about all their finances. They will provide sworn statements of net worth and financial documents such as income tax returns, health plan information, representative pay stubs, titles and other documentation regarding property. The court will set a date for the valuation of the assets at some point before trial.Q: How much is up to the judge when deciding how much spousal maintenance will be paid?
A: Even though there have been changes in New York family law in recent years to make spousal maintenance orders more uniform, judges still have quite a bit of discretion.Q. Can I get spousal maintenance before the divorce is finalized?
A. Yes, your lawyer can file a motion for temporary maintenance in New York after the divorce is filed to help support you until the final divorce decree and post-divorce spousal maintenance is awarded.Q. Can I go to court to get the amount of spousal maintenance changed or to ask that it end?
A. Yes, you can get a modification of spousal maintenance later if the court determines that an extreme change in circumstances warrants it.Q. How long is spousal maintenance paid?
A: Spousal maintenance is normally durational that is, it has a set duration, normally long enough for the payee spouse to become self-sufficient. However, there are cases, given age, health and inability to support themselves, that the payee may be awarded nondurational or permanent alimony.
To decide the duration, of spousal maintenance, judges may use an advisory schedule provided by the state of New York that lists the percent of time the couple were married as a guideline for duration of alimony. However, judges consider a number of other factors and are not required to use the schedule at all.
No matter what the court orders, though, spousal maintenance ends if
- Either spouse dies
- The spouse receiving spousal maintenance remarries
- The spouse receiving spousal maintenance begins living with a partner they hold out to be a spouse
A: Normally the recipient pays taxes on the money received, and the payer spouse deducts the payment.