OLD LAW: New York Alimony / Maintenance Law

OLD LAW: New York Alimony / Maintenance Laws : The Basics


The law changes for all divorces filed on or after January 25, 2016.


For Information on the NEW LAW please click here

A common question is about New York Alimony Laws. We don’t use the term “alimony” anymore, it has been replaced with “Maintenance.” So, when you ask about “alimony” you are really looking for information about “Maintenance Law.” To avoid confusion I will use both terms in this posting, as for practical purposes, they mean the same thing. We will sometimes refer to this as “spousal support laws.

This is no easy way to say this, the Maintenance laws in New York are difficult and not easy to understand. First, we have something new: Temporary Maintenance. This temporary maintenance (or temporary alimony) only occurs while the divorce is pending. Further, you must make a motion to the court and ask for it. Spousal support is not automatic. It is also not available in an “uncontested divorce”. (Note: No Fault and uncontested divorce are not the same thing. Uncontested means you are not fighting. You can have an uncontested divorce where you agree that one party was at fault. Likewise, you can have a No-Fault divorce where the parties are fighting over children, property and money, and so it is not an “uncontested divorce.”).

Temporary maintenance is actually much easier to calculate than permanent maintenance (alimony).

Since October 2010, we have a temporary maintenance statute. Basically, it removes the discretion of the judge and pretty much mandates that temporary support be paid. The criteria for temporary support are completely different from the final support order at the end of the divorce. This is strictly based upon percentages of  income.  Click here to see the official court calculation form. Basically, you take 30% of the income of the spouse with the greater income and subject 20% of the spouse with lesser income. Then you take 40% of both incomes and subtract the lesser earning spouse’s income. The support number will be the lower of the two calculations.  That’s it. Let’s look at two  examples:

1. Spouse has stolen $500,000 in marital assets. She is living with her boyfriend and doesn’t work as she now pregnant with his child. The husband earns $100,000 a year. She probably won’t get maintenance at the end of the divorce, however, while the divorce is pending the court will order $2,500 a month in temporary maintenance.

2. Wife earns $450,000 and lives in her own apartment. Husband earns $100,000 and lives in his own house. The parties have been separated for over a year. The husband makes a motion for temporary support. Under the statute she must pay him $9553.33 a month while the divorce is pending.

Maintenance at the end of the divorce.

This is not as simple as temporary maintenance.  In order to award maintenance at the end of the divorce, the court must literally consider 20 factors:

(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the length of the marriage  ;
(3) the age and health of both parties;
(4) the present and future earning capacity of both parties;
(5) the need of one party to incur education or training expenses;
(6) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(7) 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;
(8) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(9) 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;
(10) the presence of children of the marriage in the respective homes of the parties;
(11) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity;
(12) the inability of one party to obtain meaningful employment due to age or absence from the workforce;
(13) the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
(14) the tax consequences to each party;
(15) the equitable distribution of marital property;
(16) 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;
(17) the wasteful dissipation of marital property by either spouse;
(18)  the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(19) the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
(20) any other factor which the court shall expressly find to be just and proper.

That’s the law, now let’s look at some examples:

Let’s look at a few examples: (a) Sally is 60 years old and has been married for 40 years. She has a High School education. She stayed home and raised 3 children. Her high blood pressure is regulated by prescription drugs. Bob has worked all his life and makes about $100,000. His 401K has over $300,000. Finally, he is in excellent health. If you have read the post on pensions, you know that Sally is going to get half of the pension, so we won’t focus on that right now. Bob will probably work until 65 or even 70. As long as he is working, he will be paying maintenance or alimony to Sally. Once he retires, the maintenance will end. The question of “how” much is far more difficult to answer. As I said before, there is no hard and fast calculation. The court will look at the financial needs of both parties. Particularly, what will Sally need to live on and what Bob will need. The more assets they have, the less Bob will have to pay. If they own a house worth over $500,0o0 and no mortgage, Sally will get $250,000 cash when it is sold. The court will add this money into its alimony/maintenance calculation. This would reduce the amount Bob would have to pay. On the other hand, if there are no assets, then Bob would have to pay more money.

(b) Kat and John have been married for two years. Both are in their mid-twenties and there is one child. Kat is in good health and has been working part-time. In this case it is very unlikely that Kat would get permanent maintenance or alimony. Unlike Sally’s case, this is short term marriage and Kat really didn’t give up that much for it. She is young and healthy and has good long term prospects.

(c) Barbara and Tom have been married 15 years and have 3 children. Tom makes about $85,000 a year. Barbara has some college and has not worked for the last ten years. She’d like to go back to school and learn to become a medical biller. It will about two years before she is in a position to look for a job. This example, is much tougher. Tom will already be paying 29% of his income on child support, about $24,000. It would be tough for him to pay more, but Barbara is not going to be able to finish school being paid only $24,000. In this case, Tom might have the bite the bullet and pay between $500 to $1000 a month for the next 24 months.

(d) Anne is a registered nurse and Cal is unemployed. Anne makes about $100,000 a year and Cal has been out of work for the last 4 years. They have been married for 10 years and have one child. Cal will be able to get temporary maintenance / temporary alimony. The fact that he is the husband is not important. The law is gender neutral – which means wives can be ordered to pay maintenance / alimony to husbands.

On word of caution: Your case is unique. What happened to a friend is not necessarily what will happen to you. Each case and each judge is different.