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The court may order your spouse to provide you with financial support during the divorce or once it becomes final. The manner in which Maintenance is calculated is different in each state. Courts in New York usually award Maintenance to the spouse with a lower income so that he/she can maintain the reasonable standard of living that existed during the marriage. Spousal support gives newly divorced people the flexibility to gain the new skills or training required to support themselves financially.
Types of Maintenance
The complex notion of Maintenance in New York is referred to in three different ways: Alimony, spousal support, and most commonly, maintenance. There are two main types of Maintenance: post-divorce maintenance and temporary maintenance. Post-divorce spousal maintenance, the most common form, is a payment made from one ex-spouse to the other over a pre-determined period of time, based on the parties’ divorce decree.
The court can order that maintenance payments be made while the couple is still going through divorce proceedings in New York. Temporary maintenance, or alimony pendente lite, is an order that the higher-earning spouse financially support the lower-earning spouse while the divorce is being finalized. Once a judgment of divorce is issued, temporary maintenance payments cease and the judge determines whether permanent Maintenance is proper. Judges decide whether to order spousal support during or after a divorce based on the circumstances of each divorce.
For How Long Is Maintenance Paid?
Statutory guidelines suggest durations of a maintenance awards. For marriages that lasted less than 16 years, the duration for which maintenance will be payable is suggested to be 15% to 30% of the duration of the marriage. For marriages between 16 and 20 years, the guidelines suggest 30% to 40%. Finally, for marriages lasting longer than 20 years, the recommended duration of maintenance payments is 35% to 50%. The New York courts provide this useful table:
Length of Marriage Percent of the Length of the Marriage for Which Maintenance Will Be Payable
0 up to and including 15 years 15% – 30%
More than 15 up to and including 20 years 30% – 40%
More than 20 years 35% – 50%
Regardless of the guidelines, determining payment duration remains within the discretion of the judge, who may be guided by a variety of additional factors, including:
• Each spouse’s current income or ability to earn income in the future,
• Each spouse’s property, which includes marital property distributed in the Judgment of Divorce,
• Each spouse’s contributions to homemaking and the other spouse’s career,
• Each spouse’s age, physical health and ability,
• Each spouse’s need to incur education or training expenses,
• Each spouse’s particular needs and additional expenses such as daycare or medical treatment,
• Any reduced earning abilities due to parental obligations,
• Any reduced earning abilities as a result of having delayed or foregone education, training, or career opportunities during the marriage, including any inability to obtain employment due to age or absence from the workforce,
• Any wasteful dissipation of marital property,
• The availability and cost of medical insurance,
• Where the children live,
• The current and potential needs of any children,
• The need to care for family members other than the children,
• Existence and length of a pre-marital cohabitation or a pre-divorce separate habitation, which could affect how the court views the duration of the marriage,
• The tax consequences to each party,
• The standard of living established during the marriage,
• The actions of one spouse against another, and
• Equitable distribution of marital property.
In all cases, maintenance will terminate upon a spouse’s death or remarriage.
The Maintenance Formulas
There are two formulas for calculating maintenance in New York. To determine which formula to apply, answer first whether child support will be paid, and second, whether the higher-earning spouse is the non-custodial parent. If the answer to both questions is ‘yes’, apply Formula 1. Otherwise, use Formula 2.
1. First, determine the total annual gross income of both spouses. The person with the higher income is the maintenance payor. If either party’s income exceeds $178,000, there are additional factors set force that apply in determining any additional income and award, including:
• Investment income,
• Worker’s compensation,
• Disability benefits,
• Unemployment insurance benefits,
• Veterans benefits,
• Income from income-producing property,
• Social security payments,
• Former income or resources voluntarily reduced,
• Self-employment deductions, and
• Other income not already listed, such as services provided by friend and relatives or perks that reduce personal expenses.
Calculate the total annual deductions from income, which include Federal Insurance Contributions Act (FICA) taxes, New York City & Yonkers income taxes, support paid to a spouse who is not a party to the present divorce, public assistance, and supplemental security income. Consult the guidelines for a complete list. Subtract total deductions from the total gross income for both parties.
2. Second, dust off your calculator. Subtract 25% of the lower-earning spouse’s income from 20% of the higher-earning spouse’s income. Then, subtract the lower-earning spouse’s income from 40% of the total combined income.
3. Third, determine the lesser figure in step two. This is the calculated guideline amount of maintenance, or zero if the calculations in step two comes to zero or less.
4. Fourth and finally, you might need to adjust for low-income. To determine if the low-income adjustment applies to you, subtract the guideline amount of step three from the higher-earning spouse’s income. If the answer is less than $16,281, there is a low-income adjustment. Where the guideline amount would reduce the higher-earning spouse’s income to below the self‐support reserve ($16,281 as of March 2017), determine the amount of the award after the low-income adjustment by calculating the higher-earning spouse’s income minus the self‐support reserve ($16,281). If the answer is zero or less, the maintenance award is zero.
1. First, determine each spouse’s gross annual income just as in Formula 1.
2. Then, subtract 20% of the lower-earning spouse’s income from 30% of the higher-earning spouse’s income.
3. Subtract the lower-earning spouse’s income from 40% of the combined income.
4. Determine the lesser amount between steps two and three, which becomes the guideline amount of maintenance, or zero if the answer to step three is less than or equal to zero.
5. Lastly, if applicable, make a low-income adjustment just as you would in Formula 1.
Sound complicated? You’re not wrong. The New York courts’ maintenance guidelines worksheet will prove very useful (click here). Happily, you can use our Maintenance calculator for your convenience, and search for experienced lawyers to consult.