If spousal support may be a concern for you, contact our office today for a consultation with Ksenia Rudyuk, of Rudyuk Law Firm, P.C., to see how we can help.
These days, it’s becoming much more common to see couples with two working, career-minded partners who are both capable of being financially self-sufficient. In such scenarios, the financial impact of a divorce may be similar for both of the spouses, who may similarly provide for themselves after the divorce judgment is rendered by the court. However, for many couples, a divorce can still present a financial burden that is significantly greater for one spouse than for the other. For these scenarios, New York courts may consider awarding spousal maintenance (commonly referred to as spousal support or alimony).
When confronting the possibility of spousal maintenance, individuals may find themselves plagued with unanswered questions: In which case do I need to pay spousal support? How much spousal support will I have to pay? Or, how much spousal support will I receive? Whatever your questions, it’s important to remember that New York courts are expected to determine a “just and proper” – or fair and equitable – award of support. The key is to present a strong, persuasive case that clearly demonstrates your needs in order to promote a favorable outcome. Or, better yet, you can negotiate a settlement that will protect your best interests without the need for judicial intervention. An attorney experienced in matrimonial law can help you through this process, offering essential legal guidance as well as some peace of mind.What Is Spousal Support?
In New York, the term “spousal support” officially refers to court-ordered support payments made from one spouse to the other while the couple is still married. Requests for spousal support are filed in Family Court, typically by an individual who is not yet divorced and feels their spouse is not meeting their obligation to financially support them.
Sometimes “spousal support” is used interchangeably with “alimony,” or with “spousal maintenance,” but spousal maintenance is the preferred legal term used in New York to describe the support that an individual pays to their ex-spouse after a divorce is final. Maintenance is decided as a component of a divorce action in Supreme Court, designed to offset an inequitable financial burden brought about by the divorce. For our purposes, we’ll consider spousal support to be any kind of court-ordered support one spouse pays to the other.What Are the Types of Maintenance in New York?
Every marriage – and every divorce – is unique. So there are different types of maintenance available that address the specific circumstances of each case. The two most common types of maintenance are temporary maintenance, to be paid while the divorce is ongoing, and spousal maintenance, to be paid after the divorce is final.
Temporary Maintenance – Temporary maintenance is a form of temporary spousal support that can be awarded while the divorce is ongoing, before the final judgment is issued. Temporary maintenance may be awarded by the Supreme Court during divorce proceedings and will terminate after the final judgment of divorce. The court will typically use a statutory formula to guide their order of temporary support, but they can deviate from the formula’s calculation if they deem it necessary.
Spousal Maintenance – Spousal maintenance is ordered as part of a divorce action, in the final judgment of divorce, not as a punishment or reward for either party, but as a way to ensure that both spouses can maintain a standard of living comparable to that of their marriage. The court will evaluate a variety of different factors to determine how much support one spouse shall pay the other, if necessary, to offset a substantial earning discrepancy. Ideally, this will help the lower-income spouse become financially independent in their life post-divorce.
New York courts can order post-divorce spousal maintenance for a specific duration, based on a number of factors, or it can be permanent, rehabilitative, or restitution support, depending on the specific circumstances of the case.
Permanent Maintenance – Courts will frequently establish a set number of years to pay spousal support, but in some instances, spousal support can be permanent, granted for an indefinite period of time or until there’s a change in financial circumstances (including the death of either party or the remarriage of the recipient). New York courts will award permanent maintenance based on certain factors, including:
- Age – If the spouse was out of the workforce long enough while married (e.g., as a stay-at-home parent) that the likelihood of being able to establish and build a career post-divorce is poor
- Health – If the spouse is in poor health or disabled and unable to be self-sufficient
- Self-Sufficiency – If the spouse is unable to be self-sufficient for any reason
Rehabilitative Maintenance – The court can choose to order rehabilitative maintenance, a temporary form of support, for a spouse who is not yet financially self-sufficient but who has the likely ability to become so, given enough time and resources. Rehabilitative maintenance is intended to help a spouse acquire the skills or education necessary to re-enter the workforce or establish a new career.
Restitution Maintenance – Also known as reimbursement alimony, restitution maintenance may be awarded to an individual who financially supported his or her spouse through college or training program, or while they started a new business, during the marriage. This maintenance is intended to compensate an individual for the economic support they provided for their spouse to improve their earning potential. If rewarded, restitution maintenance can be paid in installments over a set period of time or in a lump-sum payment.When Do I Need to Pay Spousal Support?
Courts award spousal support when there’s a disparity in the income and earning potential of the two spouses that could disadvantage one of them. When spousal support is awarded, typically the spouse who earned the higher income during the marriage, and who has the higher earning potential, will be the one ordered to pay support payments. The type of spousal support ordered will determine whether the payments will be required before or after the divorce. Typically, support payments are paid regularly – commonly on a monthly basis. If spousal maintenance is arranged as part of a settlement, usually spouses are able to determine their own payment agreement without involving the court.
Couples can also sign an agreement that includes a waiver of spousal support/maintenance/alimony in the event of divorce. (See also: Prenuptial and Postnuptial Agreements in New York)Do I Have To Pay Spousal Support If I Pay Child Support?
Depending on the facts of the case, it’s possible the higher-income earner may be ordered to pay alimony in addition to child support, if the custodial parent is also economically dependent. However, the court accounts for spousal support during child support calculation by adding the maintenance to the net income of the recipient and then deducting it from the net income of the payor. (See also: Child Support in New York)If I Never Worked During the Marriage, Am I Entitled to Spousal Support After Divorce?
Stay-at-home parents and homemakers may be especially vulnerable in a divorce as their earning capacity is more likely to have been impacted by their marriage, leaving them less capable of self-sufficiency post-divorce. For example, they may find it difficult to get work after an extended absence from the workforce. New York courts, however, will examine a variety of different factors when a spouse requests maintenance in a divorce, including that spouse’s ability to be self-sufficient once the divorce is final, as well as their nonmonetary contributions to their spouse’s earning capacity. An experienced family law attorney can help you determine if you’re a likely candidate for spousal support and advise you on next steps.How Is Spousal Support/Alimony/Maintenance Calculated in New York?
Before a court can determine who has to pay spousal support in NY, or how much spousal support to pay, a couple’s finances (tax returns, pay stubs, etc.) must be reviewed. These, along with some other factors, are used to determine if spousal support may be awarded. This financial information, along with the length of the marriage, can be used to calculate “presumptively correct” maintenance and duration of support.
Statutory Formulas – In New York, courts can use one of two statutory formulas to calculate maintenance, depending on whether child support will or will not be paid to the recipient of maintenance. New York caps the income of the payor at $184,000 – which means any income above this amount will be excluded from calculations, unless the court determines there’s a just reason to include additional income of a payor, whose income exceeds the cap, and increase the award.
Statutory formulas in New York were intended to make maintenance awards more consistent from case to case, but the formulaic calculations are just a starting point for the courts to determine maintenance. Courts are given considerable latitude in deciding the final amount to award, and can deviate from the presumptively correct amount as they see fit, in accordance with their review of the facts of the case.
Factors for Determining Spousal Maintenance – Courts will use the statutory formulas as presumptive guidelines for determining maintenance, but they will also evaluate other factors, which have the potential to significantly influence the final award. Courts will assess:
- The marital standard of living
- How long the parties were together (including the length of marriage, of cohabitation before marriage, and of separation before divorce)
- Income and property (including each spouse’s share of marital property to be divided through equitable distribution) as well as debts and exceptional additional expenses (including those of a custodial parent on behalf of children, such as education, child care, or medical expenses)
- Age and health of both spouses
- Economic independence and any factors inhibiting it (including the need for additional skills or education, or the impact of children and their care on a custodial parent’s earning capacity)
- The choices spouses made during the marriage that impacted earning capacities (including nonmonetary contributions of a homemaker to improve their spouse’s earning capacity, or the impact of an extended absence from the workforce on that spouse’s lifetime earning capacity)
- Any misconduct that led to the diminishing or elimination of marital assets or that may have harmed or diminished the other spouse’s earning capacity (including domestic abuse)
- Loss of health insurance benefits
- Any factor the court deems “just and proper” in deciding spousal maintenance
- Spousal maintenance is calculated on a case-by-case basis, with many potential factors for consideration, so it can be difficult to predict what the outcome will be. An experienced matrimonial law attorney can review your specific circumstances and help you make informed decisions about maintenance.
The duration of post-divorce spousal maintenance depends largely on the facts of the case. No two cases are the same, and the specific circumstances of each will ultimately play a role in determining the length of durational maintenance (as opposed to permanent, or nondurational, maintenance), but New York courts have presumptive guidelines from which to start. These advisory guidelines, passed by New York Legislature in 2015, help to establish the duration of maintenance in relation to the length of the marriage.
Maintenance Percentages in New York – The duration of maintenance is calculated as a percentage of the length of the marriage, and this percentage shall fall within a specific range.
|Length of Marriage||Duration of Maintenance as % of Marriage Length|
|0 – 15 years||15% – 30% of marriage length|
|15 – 20 years||30% – 40% of marriage length|
|Over 20 years||35% - 50% of marriage length|
While courts may use these guidelines as a starting point, they’re not required to do so.Your Key to a Successful Resolution
Ksenia Rudyuk, of Rudyuk Law Firm, P.C. has been highly successful in procuring favorable outcomes in a variety of divorce cases, including high assets divorce, and will carefully review your specific circumstances to build a strong case in steadfast pursuit of your best interests.
If you believe spousal support will be an issue in your divorce, you need a skilled family law attorney standing by you. Contact our office today for a consultation to see how Ksenia Rudyuk can help you.