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.

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.

valuation of business

Which Spouse Retains Residential Custody?

Child Custody Long Island

When deciding which spouse will retain residential custody, the Court will have to determine what is in the best interest of the children in question. Until recently, NY followed the “tender years presumption” which stated that mothers were inherently better suited to assume the custody of young children. This presumption has been abolished and the law is currently gender neutral. Thus, there is no prima facie right to custody of a child to either parent. The Court will consider a host of factors when deciding what is in the best interests of the child. Factors the Court will contemplate include: (1) the parent’s physical and mental health; (2) the use of drugs and/or alcohol; (3) sexual activity; (4) lifestyle; (5) neglect abuse or abandonment; (6) physical or emotional abuse and (7) the parent’s relative economic status. These are just a few of the examples which the Court will consider. The Court will not give more weight to any particular factor it considers. Instead the Court will consider the totality of the circumstances when making a determination.

In evaluating what is in the best interests of the child, the home environment and ability to meet the child’s needs will need to be ascertained. The Court will consider the quality of the home environment each parent is able to provide for the child. Thus, the Court will be looking not only to the physical safety of the home, but each parent’s ability to provide for the child’s emotional, social and intellectual development. The Court’s prefer for the direct guidance and care of the child vice a third party like a baby sitter or nanny. So you may be thinking now, how does the financial resources of a parent effect the Court’s analysis?

A parent that makes more money may be able to provide a “better” home and nicer environment however Courts take into consideration the fact that if you are the non-monied spouse, you will also be entitled to child support which will level the playing field. On the other hand, while a third party is not necessarily looked on favorably by the Court, an argument can be made that in today’s environment, both parents need to work and someone may need to watch the child. If you have the financial resources to afford a nanny or day care, that will also be factored into the equation.

LEARNING POINT: The totality of circumstance will decide who gets custody. If custody cannot be worked out between the separating parties, consult an attorney quickly. You must start preparing your case immediately and shoring up your position. You do not want early decisions to have a detrimental effect on your ability to maintain custody of your child.

child custody long island

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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Child Custody Stability


Long Island divorce attorneyOne of the hardest decisions to be made when contemplating a divorce, is which parent gets custody of the kids. Before you start moving forward, first lets define custody. Custody is the expression used to describe a parent’s supervisory relationship with their children. Physical custody is the right of the parent to live with his/her children. Legal custody is the right of a father or mother to make decisions for the son or daughter regarding the child’s schooling, religion, medical care, discipline, as well as other such everyday decisions. So although married parents enjoy both physical and legal custody, when they are divorced, a decision as to custody, both legal and physical, has to be reached. Ideally, this decision is reached through a settlement, on the other hand, in case the mother and father are unable to agree, the Court will ultimately decide. Until recently, NY followed the “tender years presumption” which declared that mothers were inherently better fit to assume the custody of children. This presumption has been abolished and the law is currently gender neutral.

How does the Court decide? The Court will consider a host of factors when deciding what’s in the best interests of the children. Factors the Court will consider include: (1) the parent’s physical and mental health; (2) the usage of drugs and/or alcohol; (3) sexual activity; (4) lifestyle; (5) neglect abuse or abandonment; (6) physical or psychological abuse and (7) the parent’s relative economical status. These are just a few of the examples which the Court will take into account. The Court will never give more weight to any particular element it considers. Instead the Court will go through the totality of the instances when producing a determination.

divorce attorney long islandNow, although they are not necessarily giving more importance to any factor, the fact is that stability plays a major role in deciding physical custody. Generally, Courts will look to offer physical custody to one parent with the eye to establishing long term stability for the child. So while recent case law harps to the point that stability is one of many aspects in figuring out custody, in practice stability will play a major part in the Court’s decision making process. Who is the primary care giver? Who’s there to pick them up from school, mend bruises and do homework? When the child wakes up, who do they see?

Clearly, moving out of the house doesn’t sound the death knell for custody. The spouse that moves out does not necessarily miss out on custody. What if your spouse is forced to leave to escape abuse? Clearly that spouse is not expected to stay in an unhealthy situation in order to maintain potential custody rights down the line. What if a spouse moves out to let the child to complete out the school year? Does a spouse who leaves the home implicitly concede custody to the other? Again, depends on the totality of the circumstances.

LEARNING POINT: The totality of circumstance will decide who gets custody. If custody cannot be worked out between the separating parties, consult an attorney quickly. You must start preparing your case immediately and shoring up your position. You do not want early decisions to have a detrimental effect on your ability to maintain custody of your child.