What Factors are Considered in Awarding Maintenance?

A: 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”).

The statutory factors are:

(a) the age and health of the parties;

 (b) the present or future earning capacity of the parties, including a  history of limited participation in the workforce;

 (c) the need of one party to incur education or training expenses;

 (d) the termination of a child support award before the termination of  the maintenance award when the calculation of maintenance was based upon  child support being awarded which resulted in a maintenance award lower  than it would have been had child support not been awarded;

 (e) the wasteful dissipation of marital property, including transfers  or encumbrances made in contemplation of a matrimonial action without fair consideration;

 (f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;

 (g) 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;

 (h) the availability and cost of medical insurance for the parties;

 (i) 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;

 (j) the tax consequences to each party;

 (k) the standard of living of the parties established during the marriage;

 (l) 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;

 (m) the equitable distribution of marital property and the income or imputed income on the assets so distributed;

 (n) the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

 (o) any other factor which the court shall expressly find to be just and proper.