New York Temporary Alimony Frequently Asked Questions

A. In New York, a court may award temporary alimony after an action for divorce is filed so that the payee spouse may sustain themselves during the months or in some cases even years before the case comes to trial, and the judge makes a final decree for alimony. Temporary alimony is governed by Domestic Relations Law § 236(5-a). Many people would suffer hardship if they had to wait until the final decree to be granted alimony.

It means the same thing. The statutes refer to “maintenance,” but people often call it “alimony”.

In New York, As soon as your divorce is filed, your attorney may file a motion for temporary alimony.

After the payee spouse’s attorney moves the court to grant temporary alimony, the court will normally decide based on the motion and attached documents without testimony. Attorneys for both sides will submit financial documents such as signed statements of net worth, tax returns, W-2s, 1099s and other financial documents. The court will consider not only the finances of the parties but also the length of the marriage and any existing prenuptial or postnuptial agreement.

Judges in New York use one of two formulas to determine the amount of temporary alimony. These formulas are found in DRL § 236B (5-a). One is for couples where child support is paid and one is for couples where child support is not paid. The formulas are based on income from various sources for both parties, and deductions are allowed. There is an income cap for the payer spouse, but that income cap periodically increases to keep up with the consumer price index from the United States Department of Labor Bureau of Labor Statistics.

If the income of the payer spouse exceeds the income cap, then the court will consider a list of statutory factors after performing the calculation. But even if the payer spouse’s income does not exceed the income cap, the court may still consider additional factors in order to arrive at a just result.

If the payer’s income exceeds the cap, your lawyer may ask the New York court to take these factors into consideration when determining temporary alimony:

• Age and health
• the present or future earning capacity of the parties including a history of limited participation in the workforce
• Whether one of the spouses will have education or training expenses in order to become self-sufficient
• Change in child support during the time of the temporary maintenance award
• Wasteful dissipation of marital property by one of the parties
• Whether and how long the parties were living together before the marriage or living apart before filing for divorce
• A spouse inhibiting earning capacity of the other. This could be in any number of ways including domestic violence.
• Availability and cost of medical insurance. A spouse could lose their medical insurance due to a divorce.
• Negative effect of a spouse’s earning capacity because they were caring for children or other family members
• Tax consequences
• The standard of living the parties had while married
• Reduced earning capacity of the payee spouse due to lost educational and career opportunities
• Any other factor which the court finds to be “just and proper”.

In New York, if the parties executed a prenuptial or postnuptial agreement that spells out the terms of temporary alimony, a judge will consider that binding unless

• One of the parties challenges the agreement and wins. Such a challenge might be based on fraud; or
• The agreement is very unfair

In New York, it depends on the situation.

• Temporary maintenance usually lasts as long as the divorce process, although it could end before that if the payee spouse becomes self-sufficient.
• When the judge issues the final divorce decree, they may issue an order for post-divorce alimony that may be the same or different than the amount that was awarded for temporary alimony.
• It is also possible that by the time the divorce is finalized, the court may deem the payee party to have become self-sufficient and not in need of alimony.