How Much Maintenance Will a Court Award?

In 1980, New York moved from an “alimony” state to a maintenance state with the enactment of the Equitable Distribution Law.  Unlike child support and temporary maintenance, which one can look to a specific formula to determine how much money you can expect to be awarded, the legislature has not delineated a specific way to determine maintenance. Maintenance may be awarded in such amount as justice requires having due regard for the standard of living of the parties established during the marriage, whether the recipient lacks sufficient property and income to provide for his or her reasonable needs, and whether the obligor has sufficient property or income to provide for the reasonable needs of the other spouse.   So how is a judge to determine whether maintenance is appropriate and if so, in what amount?  There are twelve factors for a court can use.

The factors are: (1) income and property of the respective parties including marital property distributed; (2) the duration of the marriage; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and the period of time and training necessary therefor; (5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) the presence of children of the marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (11) the loss of health insurance benefits upon dissolution of the marriage; and (12) any other factor which the court shall expressly find to be just and proper.

While all factors are theoretically given equal weight, the overwhelming consideration by the courts is the rehabilitative aspect of maintenance.  Thus, the Courts will lean heavily on the duration of the marriage and the recipient’s ability to become self-supporting.  In other words, the first thing the Court will look to is the length of the marriage.  So if you were marred twenty-two months, the Court is almost guaranteed not to award maintenance.  On the other hand if you were married twenty-two years, the Court will continue its analysis. What about a seven year marriage?  How about a ten? Again there is not set rule and the Court can essentially rely on any factor it deems relevant to make its determination.

Next the Court will look to the finances of the parties.  If the length of the marriage is such that the Court is considering maintenance, the income of the parties will be the next factor.  Was one spouse living at home while the other spouse worked?  Are they both working?  Are they both working but one spouse makes $40,000.00 a year and the other makes $200,000.00 a year?  These are the factors which the Court must balance and your attorney must argue.

As mentioned above, there are twelve factors the Court will consider however, each case will bring its own set of circumstances and facts which will be weighed by the Court.  As of today, there isn’t a set formula for maintenance.  Your attorney will have to make your argument based on the circumstances of your case.

What Is Maintenance and How Do I Get It?


divorce alimony temporary maintenanceA common question clients ask is how much alimony am I going to have to pay or can I expect to receive. The answer to that question is easy: none! Most people are familiar with the concept of alimony. Alimony was originally developed as a means of providing support for women after the termination of the marriage when, generally speaking, men controlled family property and opportunities in the work place for women were hard to come by. The amount of alimony awarded was supposed to be enough maintain the standard of living during the marriage and the award was usually permanent.

With the passage of the Equitable Distribution Law in 1980, alimony was eliminated. Maintenance replaced alimony and is now a gender neutral concept. Marriage is now viewed as an economic partnership, which in the event of a divorce, will not favor one spouse over the other. Maintenance can be described as payments to be made at fixed intervals from one spouse to the other as provided by a valid agreement or ordered by the Court. Maintenance is designed to rehabilitate the economically disadvantaged spouse with an eye towards economic independence.

When determining the duration and amount of maintenance, the Court will consider the following twelve factors: (1) the income and property of the respective parties including marital property distributed; (2) the duration of the marriage,the age and health of both parties; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and if applicable, the period of time and training necessary therefor; (5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) the presence of children of marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (11) the loss of health insurance benefits upon dissolution of the marriage; and (12) any other factor which the Court shall expressly find to be just and proper

Every case is fact specific. While no one factor may hold significant weight over the others, clearly the duration of the marriage and the ability of both parties to support themselves will be significant. If you were married for five years and both parties are doctors, maintenance will probably not be awarded. If you were married 25 years, you stayed home while your spouse was working, maintenance will probably be awarded. Duration of maintenance is up to the Court. Depending on the facts of your situation maintenance can last a year or for the rest of your life.

LEARNING POINT: Maintenance is a complicated matter with different variables which you and the Court must consider. If contemplating a divorce, call us for a free consultation and discussion regarding maintenance awards and other serious matters.

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