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Obtaining Fair Maintenance And Spousal Support

The divorce process can bring out a number of fears for the parties involved. One in particular is financial security. It can be difficult to know whether or not you will come out of your divorce with the money and resources you need to move forward with your new life.

At the Law Offices of David Bliven, we understand your fears, and are here to help ensure your financial needs are met. We help individuals seeking to obtain spousal support, as well as those who have been ordered to pay. With more than 20 years of experience, we represent spouses in Greater White Plains and the Bronx.

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How Is Spousal Support Decided?

In New York, spousal support (alimony/maintenance) 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:

  • Duration of the marriage
  • Income of both spouses
  • Age of both spouses
  • Health/special needs of either spouse

In 2010, New York passed maintenance guidelines, which result in a “presumptive” amount of maintenance. The calculation is performed using a rather convoluted formula, in which the Court takes 30% of the payor’s income, minus 20% of the payee’s income, then compares it to “40% of combined income minus payee’s income” – then the presumptive amount is whichever calculation is less. Oh, and the percentages are changed if the payee is the one paying child support. And there’s a presumptive “cap” of $178,000 of combined income, such that the presumptive calculation doesn’t necessarily apply to incomes which exceed the cap. I warned you it was convoluted.

Then the Court must generally consider various statutory factors (only a few of which are listed above) to assess whether the presumptive calculation is the proper amount. Courts are rarely deviating from the presumptive formula, so if you’re the monied spouse looking at paying spousal maintenance, you want a very experienced attorney representing you. But even if you’re the prospective recipient, you likewise want a very capable attorney as you can anticipate the monied spouse attacking any one of the statutory factors in an effort to pay the least amount possible.

Circumstances surrounding spousal support are unique to each couple, and therefore the court uses its discretion when determining payment orders. In most cases, attorneys’ fees for matters surrounding spousal support are paid by the spouse with the higher income.

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”).

What are the statutory factors in awarding Maintenance?

Maintenance in New York is the equivalent of what other state’s call “alimony.” It’s intent is to enable a recipient spouse to get back on his/her “financial feet” after getting a divorce from the more-monied spouse.

New York considers numerous factors in making a final award of maintenance. They are:

  1. the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
  2. the length of the marriage;
  3. the age and health of both parties;
  4. the present and future earning capacity of both parties;
  5. the need of one party to incur education or training expenses;
  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 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.
  8. the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
  9. reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
  10. the presence of children of the marriage in the respective homes of the parties;
  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;
  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 to each party;
  15. the equitable distribution of marital property;
  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 property by either spouse;
  18. the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
  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 shall expressly find to be just and proper.

What are some strategies to limit maintenance?

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). This Guide will discuss ways to limit the presumptive amount.

NY now has maintenance guidelines which result in the “presumptive” amount of maintenance – at least for temporary orders. A calculator & the factors considered may be found here: http://www.courts.state.ny.us/divorce/calculator.pdf. 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 child(ren) 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 alot 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. Discuss them all with your lawyer.

My Husband just left & cut me off financially – what do I do?

There are instances in which one spouse is the “breadwinner” of the family – and then abruptly leaves the marital residence and refuses to support the family. The remaining spouse should have a game-plan on what steps to take.

While often times if people are getting a divorce anyway, the knee-jerk reaction is to file for divorce. If there are emergency issues, however, such as how is the rent/mortgage going to be paid next month, then filing a motion in Supreme Court may not be the way to go. This is because Supreme Court is often slow in deciding such issues. Even on an emergency motion the court gets up to 60 days to decide the motion – and that’s from when all papers have been submitted by both sides (which especially in NYC & surrounding counties can take 1-2+ months in itself). In other words, if you need a quick order, filing a motion in Supreme Court may cost you 4-5+ months just to get a decision – and even that’s on an emergency motion.

Generally the courts do not want the same issue pending in 2 courts at the same time. In other words, Judges would otherwise frown on the same party filing for divorce in Supreme Court & including a maintenance (i.e. alimony) claim in addition to filing a spousal support case in Family Court. However, one major exception is where the party requesting support is “in danger of becoming a public charge” – in other words, without the Court ordering the other side to pay support, the “needy” spouse would otherwise need to apply for some form of public assistance (food stamps, rent assistance, etc.). In Family Court, one can get an initial court date within 4-6 weeks of filing one’s support petition – and therefore usually get some form of support order entered in far less time than it would generally take for Supreme Court to decide the support issue. As such, if emergency support is needed, the requesting party should strongly consider proceeding in Family Court first (of course after consultation with an experienced Family Law attorney)!

Modifications of Spousal Support

As with child support orders, an alimony/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.

If you would like to speak with a lawyer, contact the Law Offices of David Bliven. We provide initial case assessments and can set up full case strategy consultation as needed. To get in touch, call us at (914) 468-0968 or reach us online.