How Much Maintenance Will A Court Award?


To begin, maintenance may be defined as payments made from one spouse to another at fixed intervals in accordance with an agreement between the parties or as a result of an award by the Court. In determining whether maintenance is appropriate and the amount and length of such maintenance, the Court will rely on factors set forth in the Domestic Relations Law § 236, Part B. When considering the twelve factors set forth in §236, the Court will analyze all the available information having regard for the standard of living of the parties established during the marriage, whether 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.

The factors the Court must consider are: (1) the income and property of the respective parties including martial property distributed as part of equitable distribution; (2) the duration of the marriage and 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 thereof; (5) reduced or 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 by just and proper.

Essentially, maintenance is awarded to a party to allow them time to get on their feet. You are not entitled to, nor are you obligated to pay, maintenance to keep the awarding party in a life style on par with the pre divorce standard of living. However, maintenance will be awarded to a party to allow them to “get on their feet.” So for example, if one spouse is a doctor making $300,000.00 a year and the other spouse was not working at all, it is clear that the Court should award maintenance. What if, in contemplation of the divorce, the unemployed spouse gets a job? What if that job pays $70,000.00 a year? Maintenance will in all likelihood still be awarded. First, in this example, the new job just began. The Court will recognize the fact that the nonworking spouse, who just obtained employment, is probably not in the position to rent another place to live. The Court will consider the fact that instead of working and saving money, the spouse was financially dependent on the doctor. Therefore, things like paying for the first month, last month and security deposit will be challenging at best. How about a car to get to this new place of employment? Second, the Court will consider, not only the pre divorce standard of living, but will also consider the disparity of incomes between the two parties in fashioning an award. Because the spouse has obtained employment, the duration of the award may not be as long, nor as much, however with a $230,000.00 gap between the two parties, a maintenance award in all likelihood be awarded.

LEARNING POINT: Maintenance is a complicated matter. The “reasonable needs” of a party is hard to define. The disparity in incomes and other factors will be considered by the Courts in fashioning a just award. The one to be most aware of is the twelfth factor, “any other factor which the court shall expressly find to by just and proper.” This is the catch all which allows Courts the discretion to make a decision based on anything they want! Contact us immediately to allow us to give you the best legal advice possible.

How Much Maintenance Will A Court Award?

Valuation of Businesses


A typical scenario which some clients have concerns about is their “share” of a business which they helped their spouse build during the marriage. A client will come in and tell us that they provided tangible and non-tangible support to their spouse while they built a business and now that they are getting divorced, they are interested in how much of the business they are entitled.

The first step is to determine the value of the business. Generally, the business is valued as of the date of the commencement of the action, though there are some courts which will use the date of trial. One would think that the Court of Appeals would have rendered a decision as to which date should be used when valuating the business. One would be wrong. Regardless of the date used, valuation is a complicated matter normally requiring independent experts. While there are many different approaches to valuating a business, most trial courts favor the comprehensive approach recommended by the Internal Revenue Service. This approach uses eight factors to determine the value of the business. The factors are: (1) the nature of the business and the history of the enterprise from its inception; (2) the economic outlook in general and the condition and outlook of the specific industry in particular; (3) the book value of the stock and the financial condition of the business; (4) the earning capacity of the company; (5) the dividend-paying capacity; (6) whether or not the business has good-will or other intangible value; (7) sales of the stock and the size of the block of stock to be valued; and (8) the market price of the stocks of corporation engaged in the same or similar line of business having their stocks actively traded in a free an open market.

The valuation is the easy part! Once the valuation is complete, the Court must fashion an equitable way in which to distribute the business. In fashioning an award, the Court will try to avoid a liquidation of the business or making the estranged spouse a partner of the business. Typically, if there are sufficient non-marital assets, the Courts will offset the business interests and other marital assets. For example, if the Court determines that a spouse is entitled to $50,000.00 as that spouse’s fair share of the business, and there is $50,000.00 of marital property, there is a natural offset (it is never that simple!).

LEARNING POINT: Valuating a business with respect to equitable distribution is a complicated process which even the Court of Appeals hasn’t fully addressed. Experts will be needed and various factors will be analyzed, to include the business owners statement of net worth. If the spouse in question is only a partner of a business, the valuation becomes even trickery. Contact us for a free consultation to discuss this and other equitable distribution questions.

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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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Fighting For Custody of A Child

Child Custody Lawyer Long Island

If the parties in a divorce cannot agree on who should have residential custody, a full hearing will be needed. At said hearing both sides and the law guardian, the child custody lawyer appointed to represent the children’s interests, will be allowed to present evidence. These hearings are lengthy and may last a couple of days.

To assist the Court in determining what is in the best interest of the children and thus, which parent should retain residential custody, the Court may appoint an expert to assist. The Court may direct the parties to submit to a forensic examination. §251 of the Family Court Act expressly empowers the Court to subject a parent or other person legally responsible for the care of a child to submit to an examination by a physician, psychiatrist or psychologist. The examination is limited to the purpose of assisting the Court in resolving child custody. Non-parties may not be ordered to attend an examination over their objection without prior notice of a Court application for such relief.

As a general rule, the reports generated by the forensic expert will not be admissible unless both sides agree. Generally, the expert must testify and be subjected to cross examination. The expert fees will be paid by the parties on a pro rata basis. The Court is not necessarily bound by the opinions and recommendations of said expert if the Court determines that the recommendation was based on inadequate information, there is a clear bias for or against a party, or the expert ignored significant conduct of one of the parties. In addition to the forensic report, a Court may order a “home study.” Much like it sounds, this is a study to observe the conditions of the home.

Finally, in determining what is in the best interest of the children, their opinions and thoughts will be taken into consideration by the Court. The law guardian is there specifically to ensure their concerns are adequately represented. The law guardian is paid for by the parents, again, on a pro rata basis. Obviously, the younger the children at issue, the less of an impact their wants and desires will have on the Court. On the other hand, if you have teenage children, the older they are, the more weight the Court will give to their opinions.

LEARNING POINT: Custody battles are long and expensive and should not be entered into lightly. You and your children will be subjected to questions by experts. The best practice, if possible, is to amicably settle child custody issues. However, if settlement is not possible, you must be ready for a protracted battle in which you will need top notch representation. Call us immediately for a free consultation to map out the best strategy for your case.

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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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Can My Spouse Spend Our Assets Pending the Divorce?


divorce assets and martial propertyYou have decided to get divorced.  You wisely hired an attorney and your fear is that pending the divorce your spouse will spend down the assets and/or get rid of marital property.  While the commencement of a matrimonial action serves to terminate the acquisition of marital property, it might be months or even years before the property is distributed.  Thankfully, Domestic Relations Law (“DRL”) §236 has contemplated this very real concern and has a remedy.

DRL §236 provides for “automatic orders.”  What does this mean?  It is an order restraining parties from dissipating marital assets pending the divorce.  By rule, automatic orders are filed with the summons with notice or summons and complaint.  The order goes into effect, from the plaintiff’s perspective, upon filing of the summons or the summons and complaint.   From the defendant’s perspective, the automatic orders take effect upon service.

What’s in the automatic orders? There are five statutory restraints: (1) neither party may sell, transfer encumber or dispose of any property without the written consent of the other party except in the usual course of business or to pay for the customary and usual household expenses; (2) neither party can transfer, encumber assign, withdraw or dispose of stocks, or other assets in an IRA or other pension plan without the written consent of the other party; (3) neither party may incur unreasonable  debts unless in the normal course of business or for household expenses; (4) neither party may remove the adverse party or any children from existing medical coverage; (5) neither party may change the beneficiaries of any existing life insurance policies and must keep all policies in effect pending the outcome of the divorce.

Essentially, these orders are in place so that neither spouse can spend assets without prior consent of the other party.  Further, assets can only be used in the normal course of business.  The “normal course of business” whether it is an actual business expense, or running a house hold, isn’t actually defined.  A court will need to take into account life styles, the asset used, the purpose and whether, considering all relevant factors, the expenditure was a violation of the order.

LEARNING POINT:  Once a divorce action is filed, automatic orders, which are filed contemporaneously with the action, will prevent either party from either wasting marital assets or incurring significant debt.  If you are in the middle of a divorce and you have not retained counsel, seek out an attorney immediately! They can advise how you can use the marital assets pending the divorce.

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Temporary Maintenance My Only Be Here Temporarily


temporary maintenance divorce attorney long islandPursuant to Domestic Relations Law §236B (5 a-c), for all divorce actions commenced after October 12, 2011, courts are required to apply a statutory mathematical formula in determining temporary maintenance.  Previous this change, courts created a pendite lite award by considering the reasonable needs of the moving spouse and the financial ability of the other spouse to tide over the more needy party pending the outcome of the litigation.  The award would typically cover maintenance, child support, and counsel fees.  With the change in the law, courts will apply a statutory formula to the parties’ income and calculate a presumptive award.  This award would be ordered unless that award would be considered unjust or inappropriate.

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Temporary maintenance, child support and legal fees can be a complex area to navigate

How exactly would a court determine if this presumptive award is inappropriate?  The statute lays out a list of seventeen factors a court can consider to deviate from the presumptive award.  The court will deviate from the award after considering: (1) the standard of living established during the marriage; (2) the age and health of the parties; (3) the earning capacity of the parties; (4) the need of one party to incur education or training expenses; (5) the need of one party to incur education or training expenses; (6) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (7) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (8) acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment; (9) the availability and cost of medical insurance for the parties; (10) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that inhibit a party’s earning capacity or ability to obtain meaningful employment; (11) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (12) the need to pay for exceptional additional expenses for the children, including school, day care and medical treatment; (13) the tax consequences to each party; (14) marital property subject to distribution; (15) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (16) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner, and homemaker, and to the career potential of the other party; and (17) any other factor that the court expressly finds to be just and proper.

If the court concludes that the presumptive award is unjust or inappropriate, the statute requires that the court must put in an order exactly how it came to that conclusion, which factors it considered and the reasons the court adjusted the presumptive awards.

Though just over a year old, matrimonial attorneys and courts have significant challenges to this statute.  By using an equation to determine awards, all discretion has been removed from the court, unless it can justify a deviation within the seventeen factors provided in the statute.  The problem with these factors is that many of them, if not all, will not be fully known until after trial!  Additionally, the legislation does not consider payment of household carrying charges and expenses by the payor spouse nor does it provide for consideration of domestic violence as a deviation factor if the harmed spouse’s ability to work is not impaired.  As reported in the Nassau Lawyer, The Nassau County Bar Association recently forwarded a resolution to the state legislative leaders and to the New York State Law Revision Commission which is reviewing the interim and permanent spousal support legislation and is expected to release its final report this year.

LEARNING POINT: Temporary maintenance, child support and legal fees can be a complex area to navigate.  When seeking a divorce contact an attorney to protect your rights and assets while the legislature decides whether or not to repeal the temporary award statutes.

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