Awarding Maintenance in New York: A Basic Framework for Those Getting Divorced

Under New York law, parties in a divorce are often entitled maintenance from their former or soon to be former spouse. The payor spouse is the wealthier or "monied" party, and the payee spouse is the "less monied" party. While many New Yorkers seeking a divorce know that much, they may not know there is more than one type of maintenance, and that the purpose and standards used to determine the amount paid are different under the law.

There are two types of maintenance: pendente lite maintenance, which is maintenance received by the payee spouse each month while the divorce is pending, and final maintenance, which the payee spouse receives each month for a set amount of time after the divorce between the parties is finalized.

Pendente lite maintenance is designed to maintain the status quo, or the living situation of the parties, while the divorce litigation is ongoing. Pendente lite maintenance orders can be made, and are often made by the court without a hearing on the matter, and are based upon a formula utilizing the respective incomes of the parties. Unlike final maintenance, the length of the marriage is not a factor, because this is about maintaining the parties' financial situations as they were during the marriage until everything is decided based on many factors, not about what their future needs will be. Although a hearing can be had on the matter where parties testify, typically, the award is made upon the parties' self-reported income through bank documents, sworn statements of net worth, and other financial affidavits.

Conversely, the factors considered by a New York court in determining final maintenance for after a divorce is over are far more broad and flexible. Additionally, an award of final maintenance is entirely at the court's discretion. Under New York Domestic Relations Law 236-B(6), there are twenty different factors that the court can consider. Final maintenance can also vary significantly based upon the factors with respect to how long the recipient spouse will be getting it. For example, while lifetime maintenance is upon occasion awarded (though rarely) most payee spouses only receive maintenance after the divorce for a set number of years based on the factors mentioned above and set forth below:

  1. The income of each spouse and the division of the marital property as set forth in the final judgment of divorce;
  2. The length of the marriage;
  3. The age and health of each party;
  4. The present and future earning capacity of each party;
  5. The need of one or both parties to incur educational expenses (to perhaps assist in their future earning capacity);
  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 could negatively influence their earning capacity or ability to gain future employment, including but not limited to domestic violence;
  8. The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary in order to do so;
  9. The reduced or lost lifetime earning capacity of the party seeking maintenance due tohaving foregone or delayed education, training, employment, or career opportunities during the marriage;
  10. The party with whom the children will be living (which can be anywhere from one all the time to 50/50 between both parents);
  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 (common with elderly couples or couples where one party was a long-term homemaker);
  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 of awarding maintenance to each party;
  15. The equitable distribution of marital property under the judgment of divorce;
  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 assets by either spouse (the deliberate spending away or destruction of marital property);
  18. The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration (the deliberate or thoughtless transfer, burden upon, or secretion of marital assets);
  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 may deem to be just and proper (a "catchall" provision under the law).

An award of final maintenance may be based on some or all of these factors, and a particular judge may way one or more factors more heavily as opposed to the others based upon the circumstances of the case.

Therefore, a word of advice would be, as always, act prudently and with civility when handling your financial affairs while in contemplation of or during the duration of a divorce. Secreting away assets or deliberately destroying the value of items that belong to both parties will only serve to increase the likelihood of a higher and longer award of maintenance to your ex, or an award where there would not have been one otherwise.

Lastly, it is essential for both parties to understand that just as it was viewed by you both when the marriage started, upon it's end, a Court handling a divorce in New York will consider marriage a partnership, and truly look at what each party did or did not do on every level beyond just providing income in determining a final maintenance award.

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