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.

maintenance divorce child support

Separation Vs. Divorce

What is the difference between a legal separation and a divorce?  Which is better? Which should I pursue?  These are common questions recently posed over the last couple of weeks. Domestic Relations Law (“DRL”) Article 11 authorizes actions for judicial separation of the parties without dissolution of their marriages. Since the passage of “no fault” divorces, the use of legal separations has been on the decline.  Before New York allowed no fault divorces, a party could obtain a legal separation and after a year of abiding by the separation agreement and living separate and apart, could convert that separation agreement to a divorce. Today, legal separations may be a valuable tool for those whom divorce is not an option for religious or personal reasons.

DRL § 200 sets for the grounds for obtaining a legal separation; they are: (1) cruel and inhumane treatment which threatens the physical or mental well being of the person seeking the separation thus making it unsafe for them together; (2) abandonment; (3) neglect or refusal to provide support to spouse where the spouse is chargeable with such support under the provisions of DRL§32 or of §412 of the Family Court Act; (4) Adultery and (5) confinement for more than three consecutive years.

A separation does not dissolve the marriage and it does not nullify it but rather, the marital relationship remains intact and the parties continue to be bound as husband and wife.  Most importantly a judgment of separation does not serve as a cutoff date with regard to the classification of property as marital or non marital for purposes of equitable distribution.  So if you are granted the separation and start acquiring property, that property is subject to equitable distribution.  In the same vein, debts are marital property and if your spouse continues to acquire debt, that may be subject to equitable distribution as well.  Of course, as an equitable distribution state, there will be the analysis regarding the equitable split of this type of debt.

Because the marital relationship is intact, under the Estates, Powers and Trusts Law (“EPTL”) a husband or wife will be considered a surviving spouse despite the existence of a valid separation judgment, unless the agreement was granted against the spouse that passed away.  In other words, if you were the plaintiff in a separation action and it was granted, when your spouse passes away, you can still inherit. If you pass away, your spouse may not be able to inherit.  However, a judgment of separation does terminate a tenancy by the entirety and converts it to a tenancy in common.  Thus, if you pass away, the spouse does not get the entire property and your interest can be passed to someone else.

LEARNING POINT:  A legal separation is most useful for people who DO NOT intend to divorce.  It provides minimal safeguards.  If you are contemplating a legal separation vice a divorce, seek an attorney’s guidance as soon as possible.  The above article was a brief overview of the legal separation however, every case is different and an attorney will be best suited to guide you through this difficult process.

What Happens to Marital Property?

martial property

"anything that is obtained during the marriage may be marital property subject to equitable distribution"

One of the first questions arising from a divorce, after custody of children if there are any, is what happens to the marital property. NY State is an equitable distribution state, and therefore marital property will be divided equitably-not necessarily equally-between the parties. Marital property is defined as all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action regardless of the form in which title is held. Of import is that the extent of spousal contribution to the property is irrelevant in the determination of whether something should be classified as marital property.

Thus, anything that is obtained during the marriage may be marital property subject to equitable distribution.  As you might expect, there are some exceptions.  Clearly, if something is not marital property it is considered separate property.  What constitutes separate property?  First, property acquired before marriage or property acquired by bequest, devise or descent…thus something you inherit will be classified as separate property.  Second, compensation for personal injuries regardless of when received.  Third, property acquired in exchange for separate property….you inherit $50,000.00 and you buy a car….that car is separate property.  Lastly, any property agreed to by the parties as separate property.

So, what’s the practical application?  Absent the four categories just mentioned, property acquired during the marriage is subject to distribution.  When considering this, people immediately think of the marital estate bought during the marriage. Additionally, people think of stocks, bonds, cars, summer homes etc…however, there are other things that are acquired during the marriage that people need to be aware of. Consider the following. Pension plans, 401ks, virtually any and all employment related benefits will be considered marital property.  For example, has your spouse made partner in a law firm? That partnership is a martial asset.  Did you attend and graduate from law school during your marriage? That is a marital asset. On the flip side, is there credit card debt? That is marital property that will also be equitably divided.

Learning Point: Division of marital property needs to be examined carefully by an attorney.  There are exceptions that will come into play when determining what constitutes a marital asset. Quick example….three days after you are married, your spouse graduates from medical school….that in all likelihood, even though obtained during the marriage, will not be considered marital property.  Seek immediate legal advice when you decide to divorce your spouse so that your rights are protected.