Sometimes, a court will order a divorce litigant to pay his/her spouse monthly monetary support. In many places, this kind of payment is called alimony. In New York, it is referred to as maintenance.
Before 2016, an award maintenance was based entirely on the discretion of the judge. Because of that, maintenance award vary widely from case to case. This kind of uncertainty makes it more difficult for divorce litigants to settle the matter between themselves.
A new law came into effect in 2016 that uses a guideline approach to awarding maintenance (the Maintenance Guidelines). Under the new approach, maintenance is a certain percentage of the income of the higher-earning spouse. However, the judge still has the power of discretion to deviate from the Maintenance Guidelines if the judge determines that the amount under the guideline is unjust or inappropriate.
The guideline amount is determined as follows:
If the maintenance payor does not have to pay child support to the maintenance payee, then the maintenance amount is: 30% of payor’s income minus 20% of payee’s income.
If the maintenance payor has to pay child support to the maintenance payee, then the maintenance amount is: 20% of payor’s income minus 25% of payee’s income.
But, there are exceptions to the above rule.
If 40% of the couple’s combined income minus the payee’s income is less than the maintenance amount calculated above, then the lesser amount, if it is greater than zero, will apply.
Also, if paying the maintenance amount calculated using the method above would lower the payor’s remaining income to less than the Self-Support Reserve ($16,389), than a different rule would apply.
Let look at two examples.
Example 1. Husband is also paying child support. Husband’s yearly income is $60,000 and wife’s yearly income is $30,000. Under the guideline, husband’s maintenance obligation is $4,500 per year.
Example 2. Husband is not paying child support. Husband’s yearly income is $60,000 and wife’s yearly income is $45,000. Under the guideline, husband does not have to pay maintenance. The reason here is that the wife’s income is 40% or more of the combined income of both parties.
Certain online tools that can help you calculate maintenance can be found here.
Another question regarding maintenance is duration. The Maintenance Guidelines sets forth an advisory schedule based on the length of the marriage. For marriages of 15 years or less in duration, a maintenance duration of 15% to 30% of the length of the marriage is advised. For marriages of 15 to 20 years, 30% to 40% of the length of the marriage. For marriages of more than 20 years, 35% to 50% of the length of the marriage.
Additionally, the court must, before making a decision on maintenance, consider 15 factors set forth in the guideline. These factors are:
1. the age and health of the parties;
2. the present or future earning capacity of the parties, including a history of limited participation in the workforce;
3. the need of one party to incur education or training expenses;
4. 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;
5. the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
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 availability and cost of medical insurance for the parties;
9. 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;
10. the tax consequences to each party;
11. the standard of living of the parties established during the marriage;
12. the reduced or lost earning capacity of the payee as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
13. the equitable distribution of marital property and the income or imputed income on the assets so distributed;
14. 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
15. any other factor which the court shall expressly find to be just and proper.
Disclaimer: this article should not be construed as legal advice. Each legal case should be analyzed based on its own facts and circumstances.<- Previous Next ->