Spousal Support

New York spousal support of maintenance (formerly known as "alimony"), are payments made by one spouse to the other, pursuant to either written agreement between the parties, or by court order. These payments are deductible from income to the payor for tax purposes, and includable as income to the recipient for tax purposes.

Furthermore, such payment may terminate upon the recipient spouse's remarriage, death of either party, cohabitation by the recipient (if agreed by the parties in the agreement), or the holding out by recipient and another as husband and wife.

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• What sum, if any, should be paid?
• For what period of time should such payments be made (i.e. one year, four years, lifetime)?
• How often should such payments be made (i.e. per week, bi-weekly, once per month)?
• Should such payments continue if the recipient spouse cohabits with an unrelated person for a certain period of time?

• The age and health of the parties
• The present or future earning capabilities of the parties, including a history of limited participation in the workforce
• The need of one party to incur education or training expenses
• The termination of child support award before the termination of the maintenance award when the calculation of maintenance was based on child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded
• The wasteful dissipation of marital property, including transfers or encumbrances made in the contemplation of a matrimonial action without fair consideration
• The existence and duration of a pre-marital joint household or a pre-divorce separate household
• 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
• The availability and cost of medical insurance for the parties
• The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity
• The tax consequences of each party
• The standard of living of the parties established during the marriage
• The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment, or career opportunities during the marriage
• Any other factor which the court shall expressly find to be just and proper

The formula utilized to calculate the appropriate amount of spousal support or maintenance in New York is a guideline from which the court may deviate if it is unjust or inappropriate. Spousal support determinations are made on a case-by-case basis and are fact sensitive. That said, spousal support is often viewed as "rehabilitative" in nature, which means spousal support awards are crafted in such manner as to afford a recipient spouse the opportunity to acquire and develop educational or occupational skills sufficient to achieve financial independence.

Once that period lapses, spousal support terminates. In certain instances, upon a showing that age, health, or other factors preclude eventual self-sufficiency of the recipient spouse or an inability to maintain the pre-divorce standard of living, permanent or life-time spousal support or maintenance may be granted.

For example, a person in his/her mid-fifties, or older, who had never worked, or only worked part-time with limited income-generating ability, may be a candidate for lifetime maintenance. An infirm person, a disabled person, or someone who is not able to generate enough income to become self-supporting may be a candidate for lifetime maintenance.

Where the disparity in the income is great between the two spouses (for example, where one spouse has an earning history of $100,000 and another spouse has an earning history of $15,000), a long-term award, and possibly a permanent award, might be warranted in view of the probability that the lesser income earning spouse would not be able to generate an amount of income which would enable that person to enjoy a standard of living that he/she enjoyed during the marriage.

While the action for divorce is pending, and before final judgement, or execution of an agreement, there may be a need for one spouse to request temporary maintenance (also known as pendente lite maintenance) from the court. Temporary maintenance is awarded while the case is pending to enable one spouse to sustain him or herself during the course of the action.

The amount of the pendente lite award is not necessarily the same amount as the permanent or final award. Most pendente lite orders are awarded based upon affidavits by the parties and affirmations by the attorneys submitted to the courts, and not after a trial or a hearing where the parties have an opportunity to testify and are subject to cross examination. Accordingly, the pendente lite award may be adjusted either upward or downward following a trial or a hearing.

In cases where a party may attempt to deceive the court, or actually lie in an affidavit, attesting that income is far less or far greater than the income actually provable at trial, the court has the authority to modify the pendente lite award after the trial, retroactive to the date of the application for temporary maintenance.

After the two calculations are performed, the lower sum is the presumptive amount of maintenance.

Maintenance is money paid by one spouse to the other spouse for the support of the recipient spouse. It is distinguished from child support which is money paid by one spouse to another spouse for support of the children.

When the person receiving maintenance remarries, or the support terminates by the terms of the agreement or Court order, maintenance terminates but child support will continue until the children are emancipated.

It may be proper, in some cases, to provide that the spouse who has an obligation to pay maintenance should maintain a life insurance policy for a period to correspond to the time during which maintenance is being paid and/or a distributive award is being paid. The underlying principle of course is that in the event of the death or disability of the payor spouse, a fund would be available to compensate the other spouse for loss of income and/or benefits from the payor spouse.

In many situations, the recipient spouse may not have a job or may not have a job that entitles such spouse to medical benefits. The payor spouse, who presumably is employed, would have the opportunity through Federal law, commonly referred to as COBRA, to secure medical insurance for up to thirty-six months through the employer-sponsored health insurance policy for the benefit of his/her spouse. Responsibility for payment may be pursuant to court order after trial or by agreement of the parties.

The obligation to maintain the medical insurance and/or life insurance generally terminates upon the payor spouse's fulfillment of the maintenance and/or distributive award obligation.

When a spouse is unable to secure life insurance because of physical condition or age, other means should be found, if possible, to secure the financial obligations, i.e. mortgage on property owned by the payor spouse.

Payments of maintenance - either pendente lite or permanent - are not deductible from income for federal tax purposes by the spouse paying support.