One of the big questions I get asked about is alimony. Generally, the question is either “Do I have to pay alimony?” Or “Can I get alimony?”
The problem is that there is so much misinformation out there. From television to friends, there is no dearth of bad information and myths regarding alimony.
So, I’m going to try to shoot down some of these myths and correct some of the misinformation floating around.
First, and most importantly, in New York under the domestic relations law, there is no alimony. Let me repeat it, under New York divorce law, there is no alimony. Just so we are clear, alimony was a permanent life time monthly payment from the divorced husband to the divorced wife.
Second, instead of alimony we have “maintenance.” Maintenance is a temporary periodic payment from one ex-spouse for the purpose of rehabilitating a non-working spouse back into the workforce. Maintenance is not a lifetime paycheck. It is temporary, but, under certain circumstances as I will show below, it can be permanent. There are two types of maintenance: (1) while the divorce is pending, called pende lite maintenance and (2) final maintenance which is awarded at the end of the divorce. This post is will only address final maintenance.
Third, it is not for the benefit of the wife, but for the non-working spouse. The statute is gender neutral.
Now, let’s look at the specifics under the law. When making or denying an application for maintenance the court must consider the listed factors in New York Domestic Relations Law section 236B. This is the main article for divorces in New York.
In determining an award of maintenance the court should have a:
regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties. In determining the amount and duration of maintenance the court shall consider :
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just and proper.
In Hartog v. Hartog, 85 NY2d 36 (1995), the New York Court of Appeals stated that the Legislature, in enacting the 1986 amendments to Domestic Relations Law 236B, specifically charged the courts to consider the pre-divorce standard of living when determining an award of maintenance. The “courts must consider the payee spouse’s reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors, and then, in their discretion, fashion a fair and equitable maintenance award accordingly.”
Based upon this reasoning, the court could award maintenance even for a self-supporting spouse, if it finds that she needs additional money to return to the pre-divorce standard of living.
Let’s look at some examples of how this works. In Wilkinson v. Wilkinson, 149 AD2dÂ 842, the wife was awarded maintenance in the amount $225 per week from 1988 until June 1993. The husband appealed. The appellate division found no fault with the award. “Defendant next challenges the maintenance and child support awards as excessive. Considering defendant’s stable employment for over 30 years as a conductor for Conrail, defendant’s salary of $ 56,000 subject to annual increases, plaintiff’s income of $ 6,400 with a maximum potential of some $ 15,000 and the other statutory factors necessarily addressed by Supreme Court (see, Domestic Relations Law § 236 [B]  [a], [b]), we find no reason to disturb the maintenance award. Likewise, the child support award is reasonable under the circumstances as found by the court and supported in the record.”
In Panaggio v. Panaggio 133 AD2d 526, the appellate court increased the award of maintenance. The appellate court found the lower court’s award “does not adequately reflect the parties’ preseparation standard of living or defendant’s capacity to contribute to plaintiff’s support. Based on the circumstances, including the husband’s receipt of large partnership distributions in 1983 and 1984, we exercise our discretion to award the wife $ 500 per week in maintenance. Domestic Relations Law Â§ 236 B (6) (a) (1) requires the court, in fashioning a maintenance award, to consider the “income and property” of the respective parties. Moreover, the evidence establishes that those distributions, while not reported as income by defendant, are not required to be repaid by him and were treated by him as disposable income. In any case, the record establishes that defendant has sufficient means to meet the additional maintenance obligation we are imposing, even disregarding the partnership distributions.”
In Weiss v. Weiss, 213 AD2d 542, “the court found that the defendant earned a gross income of $ 51,351.78 in 1991, which is approximately three times the amount earned by the plaintiff. Under all the circumstances presented, the award of maintenance in the sum of $ 225 per week is not excessive.”
The decision in Schnee v. Schnee 152 AD 2d 665, is very instructive. The case pulls together several factors which a court must consider in awarding maintenance, such as the length of the marriage, jobs skills of the non-working spouse and the lifestyle of the parties:
At the time of their marriage in November 1977, the plaintiff was 48 years old and the defendant was 32. The childless marriage was the second for each party. The defendant owned a lucrative knitwear business which he inherited from his father. The plaintiff was employed in the business as a bookkeeper at a net salary of about $ 275 per week. By 1984 the business was generating substantial and increasing income and numerous perquisites enabled the couple to maintain a lavish home in Brookville, New York, and a vacation home in Boca Raton, Florida. They acquired collections of paintings, porcelain figurines and other objects d’art, and three luxury automobiles; took numerous vacations and enjoyed a generally comfortable life-style. At the time of trial, the plaintiff was approximately 58 years of age and had been unemployed since August 1985, when she commenced this matrimonial action and the defendant had discharged her from her position as bookkeeper with his business. “However, we do find that the trial court’s award to the plaintiff of maintenance in the amount of $ 400 per week for five years was inadequate. In view of her age, which presents an obstacle to finding a new position, her limited earning capacity as a bookkeeper, the parties’ lavish standard of living during their marriage and the defendant husband’s substantial income, we find it more appropriate to grant the plaintiff an award of maintenance in the sum of $ 500 per week, to be paid until she remarries or she or the defendant dies.”
On the other hand in Pontorno v. Pontorno, 172 A.D.2d 734 (N.Y. App. Div. 1991), the appellate division agreed that no maintenance should be awarded. “The Supreme Court properly declined the defendant’s request for maintenance. The parties were married for only 15 months before the plaintiff commenced this action. The record does not support the defendant’s claim that she needs “some rehabilitative maintenance”. Before, during and after the marriage, the defendant had the ability to be self-supporting, having terminated her employment solely as a result of her pregnancy. In addition, at the time of the trial, the defendant indicated that she had already returned to part-time employment.”
Sometimes, neither party is happy. “In the present case, the trial court’s award of maintenance to the defendant in the sum of $ 200 per week for a period of seven years was neither excessive, as claimed by the plaintiff, nor inadequate, as claimed by the defendant. In making the award, the court, inter alia, took into account the financial circumstances of both parties, including their reasonable needs and means, as well as the plaintiff’s present and anticipated income, the defendant’s present and future earning capacity, and both parties’ standard of living. Moreover, the duration of the award was sufficient in length and designed “to render the recipient self-supporting.”Bootle v.Bootle 214 Ad2d 636.
The court must also consider the skill set of the spouse seeking maintenance. In Lord v. Lord, 124 AD2d 930, the appellate court stated: “We reject the contention that the failure to award defendant, who is apparently 45 years of age, permanent maintenance was error. Trial Term determined there was no need to do so in light of defendant’s full-time employment, income from two apartment buildings distributed to her (2nd Avenue and Yale Street), and payment to her of a distributive award of $ 50,000, bearing interest at the rate of 10% annually, in 144 equal monthly installments.”
The appellate court in De Marco v. De MarcoÂ 143 AD2d 328, reduced an award of maintenance. “The Supreme Court awarded the plaintiff the sum of $ 225 per week as maintenance for a five-year period and the sum of $ 100 per week thereafter, until she dies, cohabits or remarries. We conclude that the foregoing award is excessive and should be reduced to the sum of $ 75 per week for a period of five years. The record discloses that the plaintiff is now capable of earning $ 200 to $ 250 per week as a bookkeeper. The defendant, on the other hand, is unable to work as a result of his accident. In view of the fact that the plaintiff will be receiving, inter alia, a distributive lump-sum award of 40% of the value of the defendant’s pension in addition to an equitable distribution of all other marital assets, the $ 75 per week figure, for the five-year period, is sufficient. For similar reasons, we also conclude that the plaintiff is financially able to Â pay for her own counsel fees.”
The courts will look to earning capacity of the paying spouse rather than the money he actually earns. “The trial court erred in failing to award the plaintiff wife lifetime maintenance in light of the length of the parties’ marriage, the plaintiff’s age and health problems, and her negligible earning potential. The plaintiff worked in the gas station business run by the defendant, but she has no real marketable skills. The defendant, on the other hand, is an enterprising businessman who turned a small, one-island gas station into an extremely lucrative business which supported the parties’ lavish marital lifestyle. While, at the time of trial, the defendant’s employment income was low, an award of maintenance is determined by earning capacity, not by actual earnings. The defendant clearly has excellent business skills and a proven ability to make substantial sums of money. Although it is unlikely that he will ever again earn the income he enjoyed from the gas station business, nor will either party enjoy the lifestyle that they once shared, the defendant does have the experience and proven earning ability to pay an award of maintenance. Under the circumstances, we find it appropriate to award the plaintiff lifetime maintenance in the sum of $ 150 per week.” Borra v. Borra 218 AD2d 780.
Looking over these cases, we can find some basic principles. If the marriage was a long term, ten years or more, and the working spouse had a good income, and the non-working spouse has no skills, then the court can order maintenance, and may order lifetime maintenance. If there is a serious disparity of income, the court can also award maintenance. Lifestyle will be considered as a factor. By the same token, if the marriage is of a short term, and/or there is a reasonable parity of income, then maintenance probably won’t be ordered.