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Remarriage After Divorce: The Basics
When post-divorce spousal support (we no longer use the term “alimony” in New York) is being paid, Remarriage After Divorce will end it. In some circumstances living with another person (“cohabitation”) could also end spousal support (“maintenance” or “alimony”).
Post-Divorce Maintenance (“Support” or “Alimony”): The Definitions
As I said above, we don’t use the term “alimony” in New York. That was an old legal concept where after divorce the husband would have to support his ex-wife for the rest of her life or upon remarriage. Alimony has been deader than disco since well before disco. Instead, New York uses the terms “maintenance” or “spousal support.” These terms are used pretty much interchangeably.
Maintenance or spousal support is money that one person might need to pay the other after they get divorced. It’s like financial help for the person who might not earn as much money or maybe didn’t work because they were taking care of the family or the house. The main idea is to make sure that both people can live okay after they are no longer together.
A common misconception is that maintenance is always paid by the husband to the wife. This is based on the old concept of alimony where that did happen. Under the current law, there is no gender or sex distinction. The statute may require the person who makes more money (“the payor spouse”) to pay money to the person who makes less money (“the payee spouse.”)
The amount to be paid and the length of time it will be paid is beyond this article. But, no worries, I have written a few articles on the topic. Here’s the link to the article that addresses the basics:https://nydivorcefacts.com/spousal-support/
Remarrying: The Real Cost
Now, a big question many people have is, “What happens to my support if I decide to get married again or if I start living with someone new?” It’s a good question because the answer can change a lot depending on the language in your divorce agreement, or if you went to trial, the judge’s decision.
Let’s talk about what happens in New York since this is a New York Divorce Blog. There’s a law called Domestic Relations Law section 248. This law says that if the person getting the support gets married again, and nothing is restricting the law in the divorce agreement then the court can stop the payments.
This is a pretty hard and fast rule. Support isn’t meant to go on forever. It’s there to help the person get back on their feet financially until they can support themselves. Sometimes, the agreement made when getting divorced might say the maintenance stops if the person getting it remarries.
If you’re getting remarried, you also need to think about how it will affect the support you’re getting or paying. Plus, if you have kids from your first marriage, you’ll need to see how your new marriage might affect child support. And no, child support does not stop if the custodial parent remarries.
Most of the time, child support doesn’t change because of remarriage unless something big changes in how you or your ex-spouse can take care of the kids.
Dealing with money after a divorce can be tricky, especially with support in the mix. Making a budget that includes your income, expenses, and alimony can really help. If you’re getting maintenance, keep in mind it might not last forever, so planning for your financial future is smart.
Living Together: Cohabitation and Support
But, what happens if you decide to live with your boyfriend or girlfriend? The question often goes like this: “If I live with my boyfriend (or girlfriend) will that stop my alimony (support)?”
If the person is not getting married but is living with someone else in a way that seems like they are married, the court may also decide to stop the alimony. But, this decision is up to the court, and they’ll look at each situation carefully.
I use the word “may” because absent specific language in the divorce agreement cutting off maintenance is very hard.
Let’s go back and look at Domestic Relations Law Section 248. Absent an agreement defining what cohabitation is, the statute controls. To be honest, the statute makes it almost impossible to prove cohabitation. The text of the statute can be found here: https://newyork.public.law/laws/n.y._domestic_relations_law_section_248
But, before you wade through all that legalese, let’s focus on the real meat of the statute: “The court in its discretion upon application of the payor on notice, upon proof that the payee is habitually living with another person and holding himself or herself out as the spouse of such other person, although not married to such other person…”
The court must find that the payee ex-spouse is not merely “habitually living with another person” but must also be “holding himself or herself out as the spouse of such other person.”
If you live with your boyfriend and tell everyone, including posting on Facebook and Instragam that you are living with your boyfriend, the court cannot terminate support. Because you never held him out as your husband.
But, if you tell people he is your husband and post on Facebook something like “Love my husband” or “Hubby is mowing the lawn” etc. Then you may be holding yourself out as being the spouse of the other. Other things, such as joint bank accounts, owning property or businesses together, and even wearing a wedding ring, can trigger the statute.
My advice is that before you start cohabitating, talk to your lawyer.
Pre-nuptial and Post-nuptial Agreements
For both parties, entering a new marriage brings up the topic of prenuptial agreements. These agreements can clarify what will happen with support if the new marriage doesn’t work out. It’s a way to protect both of your financial futures and ensure that there are clear expectations about money.
Generally, the courts will enforce a prenuptial or postnuptial maintenance clause if it was fair at the time the agreement was signed and fair at the time of the divorce. Here’s a link to an article I wrote on that topic: https://nydivorcefacts.com/prenuptial-agreement-and-postnuptial-agreement/
Defining Cohabitation in Agreements
As I said above, in the absence of an agreement, the courts will apply Domestic Relations Law 248. However, the parties can agree in their divorce settlement to define cohabitation and when maintenance ends.
A cohabitation clause is generally much easier to prove than the statute. In these clauses, we usually write that maintenance will end if the ex-spouse cohabitates with a non-relative adult for a period of 90 days or more.
The dodge around that is for the boyfriend or girlfriend to maintain a separate residence and only sleep over several nights a week.
Exceptions to the Rules
Hey, this is the law, so of course there are exceptions. But, they are few and very narrow. I don’t want to address them in this article as they are very individual. And very rare. I don’t want someone thinking that they found the escape hatch and then act on it. If you are interested in exceptions and whether they apply to you, please consult with a lawyer.
Financial Planning
Another aspect to consider is how changes in your life affect how you see your finances and plan for the future. Whether you’re receiving or paying maintenance, it’s a good time to reassess your financial goals and how you’re going to reach them. This might include saving more, investing wisely, or making changes to your budget to ensure you’re prepared for what’s ahead.
I like to have my clients seek advice from a financial planner or their accountant before we strike a deal. This arms the client with financial knowledge before they even start negotiating.
Conclusion
Remember, everyone’s situation is unique. So, it’s really important to understand what your divorce agreement says. If you’re thinking about remarrying or moving in with someone, it might be a good idea to talk to a lawyer to see how it could affect your support.
If you’re getting remarried, you also need to think about how it will affect the support you’re getting or paying. Plus, if you have kids from your first marriage, you’ll need to see how your new marriage might affect child support. Most of the time, child support doesn’t change because of remarriage unless something big changes in how you or your ex-spouse can take care of the kids.
Dealing with money after a divorce can be tricky, especially with support in the mix. Making a budget that includes your income, expenses, and maintenance can really help. If you’re getting support keep in mind it might not last forever, so planning for your financial future is smart.
If you’re thinking about big changes like getting remarried or changing who you live with, talking to a lawyer is a smart move. They can help you understand how these changes might affect your support and guide you through any needed updates to your agreement.
Lastly, remember that the emotional and financial aspects of divorce and remarriage are complex. It’s not just about the money; it’s about transitioning to a new phase in life and ensuring you’re prepared for what that brings. This includes understanding your legal rights and responsibilities and making informed decisions that align with your goals and values.
In summary, whether you’re considering remarriage or a new partnership, it’s crucial to understand how these changes could impact your support. With the right information and legal advice, you can navigate these changes confidently, ensuring a stable and secure financial future post-divorce. Remember, each situation is unique, so personalized advice tailored to your circumstances is key. Here’s to moving forward with clarity and confidence in your post-divorce life.
If you have questions, call us at Port and Sava (516) 352-2999 for a free 15-minute consultation.
