Maintenance

“Post-divorce maintenance”, “spousal support”, “alimony” or simply “Maintenance” is money an ex-spouse may be required to pay the other spouse after a divorce.  The issue has always been hotly contested by parties to divorce but has recently been streamlined by the creation of guidelines that set the presumptive amounts due from a supporting spouse to a financially dependent spouse.

Who Decides Maintenance Award

A maintenance award can be set by the court after a hearing or can be agreed upon between the parties.  After the agreement is reached, the court will then confirm the agreement as an enforceable order of the court.  

Changes to the law regarding Maintenance in 2015

In 2015, Governor Andrew Cuomo signed into law, temporary and permanent spousal maintenance guidelines [Laws of 2015, Ch. 269; S. 5678/A. 7645] to set the parties’ financial obligations/entitlements.  The laws affect the temporary maintenance guidelines and extend these guidelines to post-divorce maintenance awards as well.

Among the changes that were instituted is a formula for determining the guideline amount for temporary maintenance which is paid while the divorce is pending in court.  The income cap (the maximum income off of which temporary maintenance was calculated) for the payor in that formula has been lowered from $543,000 to $175,000. Now, if the payor’s annual income exceeds $175,000, the court considers additional, specific factors in determining any additional award of temporary maintenance calculated on the income in excess of the $175,000.00.   Effective January 31, 2016, the $175,000 cap will be adjusted every two years by the Cost-Of-Living Adjustment (COLA).

The new law now establishes a formula to determine the amount of post-divorce maintenance; money paid by one spouse to the other as support after a divorce is granted.  The duration of the post-divorce maintenance is determined in consultation with an advisory schedule that sets the length of the maintenance payments based upon the length of the marriage.  It is up to the court whether or not it chooses to use the suggested lengths below.

• For marriages lasting between 0 -15 years, percent of the length of the marriage for which the maintenance will be payable is 15-30%;
• For marriages lasting between 15-20 years, percent of the length of the marriage for which the maintenance will be payable is 30-40%; and,
• For marriages lasting more than 20 years, percent of the length of the marriage for which the maintenance will be payable is 35-50%.

Permanent Maintenance vs. Temporary Maintenance

Maintenance may be awarded on a permanent or temporary basis.  Permanent maintenance occurs if the couple is married for a significantly long period of time and if one spouse is substantially financially better off than the other.  Temporary Maintenance is money a spouse may be required to pay the other spouse while a divorce is pending in the court.  When the new law was passed in 2015, guidelines for both types of maintenance were altered.  Online resources, including worksheets and calculators, provided by http://www.nycourts.gov/ can offer some assistance and guidelines.

Factors for the Court to Consider for Temporary Maintenance:

●      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 during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;
●      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 foregone or delayed education, training, employment or career opportunities during the marriage; and
●      any other factor which the court shall expressly find to be just and proper

For additional information click Factors for the Court to Consider for Temporary Maintenance

Post-Divorce Maintenance

After the divorce is final the court can award “post-divorce maintenance”.  Similar to the temporary maintenance guidelines, the income cap off of which maintenance is calculated for post-divorce payments is also $175,000. Additionally, the court considers which formula to use based on which spouse will be the payor of the maintenance and which spouse will have custody of the children of the marriage, if custody is relevant to the particular case.


15 Factors for post-divorce maintenance or where the Payor’s income exceeds $175,000:

“15 Factors For Post-Divorce Maintenance Or Where The Payor’s Income Exceeds $175,000”

http://www.nycourts.gov/. Retrieved from http://www.nycourts.gov/divorce/pdfs/15-Post-Divorce-Maintenance-Factors.pdf, May 31, 2016

●      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 foregone 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

At Berger, Fischoff & Shumer, LLP, you will speak with an experienced divorce and family law attorney in the area of Maintenance, Temporary Maintenance and Post-Divorce Maintenance. Our goal is to limit any unfair economic effects of a divorce. Our divorce and family law attorneys will help you understand your rights so you can continue to provide a life for yourself and your children.  Our dedicated family law and divorce team are here for you. Please call us for a free consultation.


At Berger, Fischoff  & Shumer, LLP we provide experienced, aggressive and affordable legal services to our Long Island clients.  We handle even the most complex and contentious disputes with the utmost discretion.  We  understand the sensitive nature of the issues you are being faced with.  

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