Maintenance Basics2017-12-07T18:55:24+00:00

Spousal maintenance, formerly known as alimony, is money an ex-spouse may be required to pay the other spouse after they get divorced. When spousal maintenance is ordered by the court, it is usually for a limited amount of time. You may be able to receive maintenance payments if you truly need the financial support, and your ex-spouse can afford to pay it. If you are in the middle of a divorce or still living with your soon-to-be-ex-spouse, you may be able to receive temporary spousal maintenance while the case is ongoing up until it is finalized. A law was passed in 2010 that outlines a formula for New York judges to calculate maintenance awards, and lists a set of factors for judges to consider in calculating temporary spousal maintenance.

The way in which alimony is calculated is different in each state. New York courts usually award alimony to the lower-earning so that he/she can sustain the reasonable standard of living that existed during the marriage. Spousal maintenance allows newly single people the time and flexibility to gain the training and skills needed to support themselves financially.

Alimony in New York is referred to in three different ways: alimony, spousal support, and most frequently, maintenance. In New York, a judge can order that you receive or pay temporary maintenance while your divorce action is pending. This is also called alimony pendente lite. Its purpose is to give the dependent spouse immediate financial help based on that spouse’s current needs. Once the court issues a divorce judgment, any temporary maintenance terminates and the judge decides whether to award permanent alimony in its place.

There is also post-divorce maintenance in New York. This type of maintenance is the most common form of maintenance, and is awarded to the spouse that needs support after the divorce is final. The duration of this support depends on the length of the marriage (learn more under the “Configuration and Duration of Maintenance” tab). Judges decide whether to order maintenance during or after divorce proceedings based on the circumstances of each case.

A New York court can order a post-divorce maintenance award to be “durational” or “non-durational.” Durational maintenance is paid by one spouse to the other for a fixed period of time. A non-durational maintenance award does not have a fixed period of time. Rather, non-durational maintenance is paid throughout the supported spouse’s lifetime, yet the support obligation may end due to death, remarriage, retirement, or other reasons.

Statutory guidelines in New York contain suggestions for durations of a maintenance awards. For marriages that lasted fewer than 16 years, the guidelines suggest maintenance be paid for 15% to 30% of the duration of the marriage. For marriages lasting 16 to 20 years, the guidelines recommend 30% to 40% of the duration of the marriage. Lastly, for marriages lasting beyond 20 years, the suggested length of maintenance payments is 35% to 50% of the duration of the marriage. See below table.

Length of MarriagePercent of the Length of the Marriage for Which Maintenance Will Be Paid
0 – 15 years15% – 30%
15 – 20 years30% – 40%
More than 20 years35% – 50%

Judges are free to deviate from the guidelines based on their consideration of an array of additional factors, including:

  • The standard of living established during the marriage,
  • Equitable distribution of marital assets,
  • Each person’s property and assets,
  • Each person’s age and physical and emotional health,
  • Each person’s current and future earning capacity,
  • Each person’s needs and additional expenses,
  • Each person’s domestic contributions and to the other spouse’s career,
  • The cost and availability of medical insurance,
  • Any reduced earning capacity due to domestic or parental obligations,
  • Any reduced earning capacity due to foregone education or career opportunities during the marriage,
  • The current and projected needs of any children and where they live,
  • The need to care for additional family members,
  • Tax consequences to each person,
  • Whether there was pre-marital cohabitation or a pre-divorce separate habitation, possibly affecting how the court views the length of the marriage, and
  • The actions and behavior of one spouse against the other spouse.
The New York legislature passed a new maintenance law in 2015. Included in the law were new guidelines, i.e., formulas, for calculating temporary and post-divorce maintenance. These new temporary maintenance guidelines only apply to divorces filed on or after October 25, 2015. Click here for the temporary maintenance calculator. The new post-divorce maintenance guidelines apply to divorces filed on or after January 25, 2016. Click here for the post-divorce maintenance calculator.

Below are some important highlights of the new maintenance law:

1. There is a new cap of $175,000 on the amount of income that may be used in calculating temporary and post-divorce maintenance. The former cap was $543,000. It is within the court’s discretion to include income higher than $175,000. If either party’s income exceeds $175,000, there are additional factors set forth that apply in determining any additional income and award. These additional factors include investment income, disability benefits, worker’s compensation, unemployment insurance benefits, stipends, fellowships, social security payments, veteran benefits, income from property, self-employment deductions, and any other income not already listed.

2. The law outlines two formulas for calculating maintenance in New York: (a) the first formula is used in cases where child support will be paid and the [temporary or post-divorce] maintenance payer is also the non-custodial parent for child support purposes, and (b) the second formula applies where child support either will or will not be paid, but the [temporary or post-divorce] maintenance payer is the custodial parent.

a. With child support + maintenance payer is also the non-custodial parent: (i) subtract 25% of the lower-earning spouse’s income from 20% of the higher-earning spouse’s income; (ii) then, subtract the lower-earning spouse’s income from 40% of both spouse’s total combined income; (iii) the lower of the two amounts will be the guideline amount of maintenance.

b. With or without child support + payer is the custodial parent: (i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payer’s income; (ii) multiply the sum of the maintenance payer’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance, or zero if the calculations in step ii comes to zero or less.

3. Temporary maintenance now terminates no later than the issuance of a judgment of divorce or the death of either party, whichever occurs first. The Supreme Court has the power to limit the duration of temporary maintenance.

4. Post-divorce maintenance terminates on the death of either party or the re-marriage of the recipient spouse.

5. In determining temporary maintenance, the court can allocate the responsibility for payment of specific family expenses between the parties.

6. The definition of income for post-divorce maintenance will include income from income-producing property that is being equitably distributed (also see “7” below).

7. New factors in post-divorce maintenance will include termination of child support, income or imputed income on assets being equitably distributed, etc.

8. The durational periods of the new advisory formula for post-divorce maintenance contain ranges to afford courts more discretion. The formula contains more realistic durations for payment of post-divorce maintenance. However, nothing in the law prevents New York court from awarding non-durational, post-divorce maintenance in certain cases if fair and necessary.

Length of MarriagePercent of the Length of the Marriage for Which Maintenance Will Be Paid
0 – 15 years15% – 30%
15 – 20 years30% – 40%
More than 20 years35% – 50%

9. In determining the duration of maintenance, the court must consider anticipated retirement assets, benefits, and retirement eligibility age.

10. Retirement is now a ground for modification of post-divorce maintenance, assuming it results in a substantial diminution of income.

11. Enhanced earning capacity is no longer considered a marital asset.

12. A new factor in maintenance awards is termination of a child support award.

Click here to see a detailed list of changes and the actual text of the law.