Maintenance / Spousal support

How do I know if I qualify for maintenance?

In a divorce, one spouse may request maintenance, also known as alimony, from the other spouse. In determining whether a spouse should be awarded maintenance, the court considers several factors, including: the income and property of both parties; the duration of the marriage; the age and health of both parties; the ability of the spouse seeking maintenance to become self-supporting; which spouse has custody of the children; and whether one spouse contributed to the other spouse’s career or education. Due to these considerations, it is difficult to be awarded maintenance when the length of the marriage was short, the parties are relatively young and healthy, or if the other spouse earns a low income and has little property. Maintenance is usually ordered for a set period of time to give the person a chance to become self-sufficient.

The key factors the court looks for in determining an award of maintenance are pursuant to the provisions of Section 236, Part B, Subdivisions 1 and 6 of New York’s Domestic Relations Law, wherein, among other things, is set forth the definition of maintenance, and a married person’s right to temporary, pendente lite, and permanent maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage, and, more particularly, the factors to be considered by courts when considering the issue of maintenance, which may include, among other factors, the following:

  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 and 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;
  15. Any other factor which the parties or the Court shall expressly find to be just and proper.

In determining the amount of maintenance that shall be paid, the Courts are guided by the Maintenance Guidelines Law (Chapter 269, Laws of 2015), pursuant to which there is an obligation upon Courts in a matrimonial action to award the guideline amount of maintenance on income up to $192,000 to be paid by the party with the higher income (the maintenance payor) to the party with the lower income (the maintenance payee) according to a formula, unless the parties agree otherwise or waive this right. The parties have been further advised of the following:

  1. Depending on the incomes of the parties, the obligation might fall on either the Plaintiff or Defendant in the action.
  2. There are two formulas to determine the amount of the obligation. If the parties do not have children, the higher formula will apply. If there are children of the marriage, the lower formula will apply, but only if the maintenance payor is paying child support to the other spouse who has the children as the custodial parent. Otherwise the higher formula will apply. The two formulas are set forth as follows:
    Lower Formula
    I-Multiply Maintenance Payor’s Income by 20% .
    2- Multiply Maintenance Payee’s Income by 25% .
    Subtract Line 2 from Line I: = Result 1
    Subtract Maintenance Payee’s Income from 40 % of Combined Income* = Result 2.
    Enter the lower of Result 2 or Result 1, but if less than or equal to zero, enter zero.
    Higher Formula
    l-Multiply Maintenance Payor’s Income by 30%
    2- Multiply Maintenance Payee’s Income by 20%
    Subtract Line 2 from Line 1 = Result 1
    Subtract Maintenance Payee’s Income from 40 % of Combined Income*= Result 2
    Enter the lower of Result 2 or Result 1, but if less than or equal to zero, enter zero
    *Combined Income equals Maintenance Payor’s Income up to $184,000 plus Maintenance Payee’s Income
    Under either formula, the Court will determine how long maintenance will be paid in accordance with the statute which, among other things, takes into account the length of time that the parties have been married.