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.

Enforcement of Maintenance of Child Support


A common question which clients have been asking deals with the enforcement of a court order to pay child support and/or maintenance. Once a Court issues an order, one would hope that the party to which the order has been directed would follow it to the letter. Unfortunately, this is not always the case. Sometimes, a party simply cannot afford to make the payments as ordered. This usually happens when there is a legitimate loss of income. On the other hand, sometimes people simply do not pay. If this is the case, your remedy may be to seek a contempt order.

The remedy of contempt is available to punish the defaulting party. Domestic Relations Law (“DRL”) allows the matrimonial court to invoke contempt sanctions of Article 19 of the Judiciary Law as a means of enforcing the directions contained in its orders and judgments. The contempt order is the most drastic form of relief because the consequences of contempt can be either a fine or incarceration. Thus, courts view this remedy as a tool of last resort and as such, the Court must first find that the default was willful.

Failure to follow a Court order and pay maintenance and /or child support does not conclusively prove that you are in willful default; however, it is prima facie evidence of willful disobedience. Once this presumption is established, it incumbent on the defaulting party to overcome this presumption and show that their failure was not willful.

Before the Court will find a party in default, it must be shown that payment cannot be obtained in any manner, i.e. income execution, entry of judgment etc. As mentioned, willfulness is linked to the defaulter’s ability to pay. If the defaulting party raises his/her inability to pay, there must be hearing to determine the facts and circumstances of that person’s inability to pay. The typical defense to default is the defaulting party’s loss of their job which creates a financial hardship. When this is the defense, the Court will look to see if the loss of employment was willful. If you purposely quit your job or do something which causes you to be fired, you may be held in contempt. The Court may find your willful loss of a job should not allow you to escape your financial responsibilities.

LEARNING POINT: Contempt of Court is a drastic tool available for those who willfully disobey the Court’s directions. If you are subject to such an order or you are the beneficiary of such an Order, there are things you can do to either enforce the order, or defend yourself from contempt charges. Adequate preparation is key. Call us for a free consultation and allow us to prepare the best possible case for your situation.

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