Maintenance (Alimony) In New York

What is maintenance? In common language, it is usually called alimony. The Courts and your legal papers will call it maintenance. Maintenance is defined as the payment of money from one spouse (or a former spouse) to the other spouse. The purpose of maintenance is to ultimately allow you to become financially self-sufficient. You can receive maintenance at the same time as receiving child support. However, whatever amounts you receive in maintenance can (and probably will) reduce how much child support you receive.

Maintenance may be awarded to either spouse without regard to gender. Therefore, either spouse may request maintenance as part of the divorce. However, if you want to be eligible for maintenance you must request it in your Complaint or Answer.

Unlike child support, there is no formula for post-divorce maintenance (maintenance that you receive after the Judgment of Divorce is granted). There is a formula for temporary maintenance, this is maintenance received from the time the divorce is started until the Judgment of Divorce is granted. For more information about temporary maintenance, see the article regarding temporary maintenance.

Although, in New York State, there is no formula for maintenance, there are several formulas that are used in other States or that have been proposed. Each of those formulas are somewhat complicated, but, they are a good starting point in determining the amount of maintenance.

In deciding whether you are eligible for maintenance, the Court uses the following factors:

1. 1. The income and property of the respective spouses, including marital property distributed pursuant to equitable distribution.
   2. The duration of the marriage.
   3. The age and health of the respective spouses.
   4. The present and future earning capacities of both spouses.
   5. The ability of the person seeking maintenance to become self-supporting.
   6. Whether there is a reduced or lost earning capacity of the person seeking maintenance which resulted from forgoing or delaying training or employment during the marriage.
   7. The presence of children of the marriage in the respective homes of the spouses.
   8. The tax consequences to the parties.
   9. Other contributions and services of the spouse seeking maintenance.
   10. Whether either spouse has wasted the marital assets (also known as wasteful dissipation of marital assets).
   11. Transfers made by a spouse in contemplation of the divorce action at below-market value.
   12. Any other factor the Court determines as being relevant.

In general terms, the most important factors are: the length of the marriage and the income of the spouses. Each marriage and divorce is different. Therefore, it is difficult to predict if a Court will order maintenance to be paid/received. In general terms, if your marriage was 5 years or less, it is unlikely that a Court would order maintenance. In contrast, if your marriage lasted 20 years or more and there is a financial reason to award maintenance, then it is likely that a Court would order.

Assuming you are awarded maintenance, there will be two parts to the award: (i) how long you will receive maintenance; and (ii) the monetary amount of the award.

There is no set length of time that a Court will order maintenance. As a general rule of thumb, many attorneys will take the number of years that you are married and divide by 1/4 or 1/3 to determine the number of years. For example, if you were married 12 years, you may receive maintenance for 3 or 4 years. As another example, if you were married 21 years, you may receive maintenance for 5 to 7 years. However, it is important to note that there is no set formula that determines the actual amount of time that maintenance will be paid/received.

Regardless of what the court order specifies, maintenance will usually end upon the following events: (i) the receiving spouse is remarried or (ii) the receiving spouse dies. Maintenance payments may end if there is proof that the receiving spouse is living with another person.

The Badanes Law Office has assisted several individuals with divorces and can help you understand how maintenance works and how it could affect you. Call the Badanes Law Office today at: 631-239-1702, email us at: david@dbnylaw.com or visit our web site: www.dbnylaw.com.