Is Alimony or Spousal Support Mandatory in a Divorce Case In New York?
Preliminarily, in New York “alimony” is termed as “maintenance.” That said, I would not term it as “mandatory.” That term seems to imply that the non-monied spouse is entitled to maintenance. I’ve heard some attorneys throw out the term entitlement or entitled – that’s simply wrong under the law.
The law does not use the terms mandatory or entitled. The statute – as well as the case law interpreting the statute – uniformly speak in terms of presumptions. Indeed, there are general rules that are set up by the statutes. If one plugs in the monied spouse’s income into the maintenance formula and the non-monied or less monied spouse’s income into the formula, then one will come up with a “presumptive” or general rule of what the maintenance amount should be.
That’s not the be all and end all of the analysis, especially when crafting a final award of maintenance. One would need to consult all of the other statutory factors to see which ones come into play to possibly deviate from the presumptive amount or result in a zero award. Common examples of zero awards or vastly reduced maintenance awards would be where the less monied spouse would get a significant award of assets and or a significant amount of child support which would otherwise impact or arguably impact the amount of maintenance that the person would get.
Is There Such A Thing as Permanent Alimony In New York? Who Would Qualify for It?
Permanent alimony or maintenance can be awarded to qualifying individuals in some cases. In the case law it’s termed “non-durational maintenance.” The terms are as a practical matter, interchangeable however.
Non-durational or permanent maintenance would come into play where the parties were married for a very long time – usually 30, 40 years, or more. The second portion is where the non-titled or non-monied spouse is of an age where they have been out in the workforce for a very long time. It’s also usually where s/he doesn’t have a college education and as a practical matter it wouldn’t make sense for them now to go back to college to earn a degree and get into the workforce. If they’re in their 50s, obviously some people do that – but if the parties have been married for 30 years and the person is 55 years old, then as a practical matter, s/he may be retiring in another 10-15 years.
At that point it wouldn’t make a large amount of sense for them to use maintenance simply to get a college degree and then try and go into the workforce for the very first time. In those cases, the person gets non-durational maintenance to the degree that it would carry through to when the monied spouse retires and then the monied spouse would have retirement assets that the non-monied spouse would be able to claim at that point in lieu of continued maintenance. Other times where the monied spouse makes very high income (usually millions of dollars a year or more) there can be an award of both. Thus, there can be an award of permanent, non-durational, or maintenance as well as a share of the monied spouse’s retirement assets.
Can I Get Support or Alimony If I Have Not Filed for Divorce Yet?
You can get support and/or alimony (I.e., maintenance) even if you haven’t filed for divorce. One can file for spousal support or interim maintenance in Family Court prior to filing for divorce.
Sometimes, when the non-monied spouse comes to me for a consultation, commonly the husband just moved out of the house. They have bills to pay and they’re extremely worried about being able to meet those bills within the next month. I have to let them know that if we file an application in divorce court it may take 2-5 months to get a decision from a Judge on interim maintenance. If that’s a concern, I’ll recommend that the less monied spouse go to Family Court and file a Petition as they’re likely to get a court date within a month (& thus get an interim order of spousal support or maintenance going). That way either party can subsequently file for divorce but that Family Court order would usually continue – and could even be modifiable by the Divorce court. And if the divorce gets filed thereafter, usually the Family Court proceeding could be dropped (especially if it was just an interim or temporary order of spousal support), because that case can be consolidated into the divorce case.
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