Spousal maintenance in New York divorce actions

Spousal maintenance, otherwise known as spousal support or simply ‘maintenance is a form of financial support paid to one spouse by another to cover their reasonable financial requirements either during a divorce action or after the marriage legally ends. The amount awarded, as well as payment duration, is specified in the judgement of divorce after the parties agree to a certain arrangement or a Supreme Court judge makes a decision.

Spousal maintenance is awarded under one of two conditions:

• In a New York Family Court action
• As part of a divorce decree

Temporary spousal maintenance

When the New York legislature signed off on the no-fault divorce law, it also approved a law permitting temporary spousal support while the divorce is pending. Its purpose is to prevent the lower-income spouse from falling into financial difficulties during litigation.

Judges use one of the approved formulas to calculate the amount of temporary maintenance payable. This formula dictates that the amount should be the lesser of either:

• 30% of the higher-earning partner’s income, minus 20% of the lower-earning spouse’s income
• 40% of their joint income, minus the income of the lower earning partner

This total is presumed to be fair unless the the spouse required to make the payments can prove that it is unjust and could cause financial hardship. Judges also have the discretion to deviate from presumptive amounts but must list their reasons in the decision.

Permanent spousal maintenance

Once a spouse applies for permanent maintenance payments as part of a divorce action, the court considers factors such as:

• The income of each spouse, as well as any assets in their name
• Each party’s present and future earning capacity
• The ability of the spouse seeking maintenance to eventually support themselves
• The length of the marriage
• The age and general health of each spouse
• Which spouse will be the custodial parent of any minor children
• Whether or not either spouse wastefully disposed of marital property

With few exceptions, permanent maintenance will be paid for a period of time varying with the length of the marriage.

Maintenance Support Modification

When a judge awards spousal maintenance in Family Court, the order can only be changed by petitioning the court for a modification or termination. After a judgment of divorce has been granted, a party may file their petition in Family Court only if the judgment indicates that the Family Court has concurrent jurisdiction. Otherwise the support order can only be modified in the Supreme Court.

Maintenance Order Violations

If the ex-spouse paying support is found to be in violation of the support order, then the court may issue a judgment for any unpaid amounts. Willful violations can actually result in incarceration, money judgements, interest and legal fees.

Any couple planning to divorce in New York state and include spousal maintenance in the divorce action should retain separate spousal maintenance attorneys to facilitate an arrangement that provides each side with the financial resources they need to build a new life.

Call Eskin & Eskin, P.C. at 718-402-5204 if you are facing an alimony matter or other family law or divorce issue in Bronx or New York Family Court. We are a family law firm with over 40 years of combined experience. Visit www.EskinAndEskinLaw.com to learn more about our services and record of success.