An Overview Of Alimony Or Spousal Support In The Divorce Process

Maintenance (other states use the term "alimony") is determined by a number of issues relating to a marriage. It may be temporary or permanent.

Although it is not a given right to either spouse, the courts will generally order a certain amount of spousal support based on the following factors (this is a non-exhaustive list): duration of the marriage, income of both spouses, age of both spouses, health/special needs of either spouse, circumstances surrounding spousal support are unique to each couple, and therefore the court uses its discretion when determining maintenance orders.

In most cases, attorneys' fees for matters surrounding maintenance are paid for by the spouse with the higher income. Indeed, in 2010, New York passed statutes making interim maintenance & counsel fees presumptively awarded on all cases involving a higher-earning spouse versus a lower-earning spouse.

Additionally, as with child support orders, a maintenance order may be modified if the court can be shown there has been a substantial change of circumstances in the life of either party involved (though if there was a valid written agreement such as a "stipulation of settlement" or "separation agreement," the standard to modify may be "unanticipated change of circumstances").

As of 2010, New York has presumptive calculations to arrive at what the "general rule" is for maintenance between two parties. This means that they start with the parties' incomes and use two sets of formulae that the court calculates. One calculation is to determine whether the payer is going to be paying child support or is going to be the recipient of child support. If they are going to be the payer, then it's 20% of the payer's income minus 25% of the payee's income. If it's the recipient, then it's 30% of the payer's income minus 20% of the payee's income. The court also compares that to 40% of combined income, minus the payee's income. Whichever comes out less is the presumptive amount of maintenance. So, it's a rather convoluted formula which is why I'll return to the calculator to do that calculation.

The other factor is that the presumptive amount only goes up to a combined income of $178,000. That's at least a presumptive cap currently in effect, though that cap is adjusted bi-annually pursuant to the consumer price index, and it goes up by a few thousand dollars every other two years. So that will result in the presumptive amount of maintenance. Then, there are various factors that the court will consider in deviating from that presumptive amount or interim amounts of maintenance. In other words, while the divorce is pending, there are 13 statutory factors that the court will consider in the final award, although the statute characterizes that as a post-divorce award. There are 15 statutory factors that the court will consider in arriving at the proper amount or deviating from the presumptive amounts. That's the basic way that maintenance is calculated.

If you're a high-wage earner, and your spouse earns little or nothing, then you face the prospect of paying spousal maintenance (i.e., alimony).

If you face the prospect of paying maintenance, one thing you should do is document to your spouse that you want him/her to find employment - or if they are working, to find a better job or go back to school. You should do everything in your power to encourage his/her job efforts. Send him/her job listings, for instance. If s/he isn't working due to child care, offer to have the children stay with a relative or find daycare. Does your spouse have employable skills or work history & is simply squandering them? Consider hiring a headhunter or employability expert to assist in the process.

There are 15 factors considered in arriving at the "proper" amount of maintenance. Was this a short-term marriage (less than 10 years)? Do you have a high amount of marital debt (indicative of living above your means during the marriage)? Does your spouse have a college or graduate degree which may create high earning potential? Was the degree earned during the marriage? Is your spouse likely to get a relatively high distribution of assets from the marriage? Does your spouse own any separate property (or have any separate assets)? Are you covering your spouse on your health insurance (and is there an additional amount you pay to cover him/her)? All of these are common factors considered in reducing or eliminating the potential for the Court to award maintenance.

Can Spousal Maintenance Awards Be Modified?

The modification will depend on whether or not there is a settlement agreement in place. If there is a settlement agreement in place, it is essential to have a provision saying that the maintenance amount can be adjusted on a normal substantial change of circumstance. A substantial change of circumstance is such that either side's income goes up or down by 50% or more. This could be caused by the loss of employment, a substantial change in expenses, or something else along those lines. However, if the settlement agreement is silent on how maintenance can be adjusted over time, then the court borrows from regular contract law and says that the only way you can change maintenance is on a standard of unanticipated change of circumstances. That makes it extremely hard to change a maintenance amount, because the other side can say that you signed this contract agreeing to this amount, and perhaps I gave up other claims in the divorce case in exchange for this amount. Now that you are changing that amount, it wouldn't be fair for me to have given up all those other things in the divorce case, or to have paid more for those things if I'd known my maintenance would be adjusted. That's why the courts generally make it pretty hard to change maintenance if you do so pursuant to a settlement agreement that does not otherwise provide for a lower basis to change the amount.

For more information on Alimony/Spousal Support In A Divorce, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 368-7580 today.