Spousal Maintenance: 3 Dirty Secrets
Spousal maintenance is a term that covers what clients will refer to as alimony or spousal support. In New York state, the correct term is spousal maintenance. There are 2 types of spousal maintenance. Both are defined by statute. The first is temporary spousal maintenance. It is the spousal maintenance paid while an action for divorce is pending. We often do not address that issue in an uncontested divorce, because we generally do not have a situation where the parties are in different households and they are arguing about how the bills are going to be paid.
Permanent spousal maintenance is also based on a statute that defines for the court and attorneys what elements must be considered when spousal maintenance is calculated. Those elements are general; they are not specific; there is no formula. So, we have to look at the parties’ respective household budgets.
We usually consider one factor more than the others because it is a primary factor in the statute. That is standard of living. The objective of spousal maintenance in New York state is to maintain each spouse’s standard of living after divorce. This is not always an easy task because when you divide two households and one income, you really cannot maintain both parties’ standard of living.
This is why we also look at budget and determine what is possible. Spousal maintenance in New York state is what is called rehabilitative. It does not last forever. It is based on a term of years. It is designed to provide the spouse who earns less money an opportunity to get back on their feet, become reeducated or find a job that will allow them to support themselves.
Types of Spousal Maintenance
Spousal maintenance is in a state of flux in the State of New York. Currently, there are two statutes. One statute is formal and it applies to temporary spousal maintenance. It is paid prior to the judgment of divorce being entered. The other statute is a post-judgment permanent spousal maintenance statute.
It is important to note here that permanent does not mean forever. It is the statute that applies to maintenance after a judgment of divorce. The New York legislature has created and passed a new statute on spousal maintenance which will do away with both of the existing statutes. That statute has been passed by the Senate and the Assembly and is awaiting signature by Governor Cuomo. Once that statute is passed, spousal maintenance, both temporary and permanent, will be ordered pursuant to a formula.
- Temporary spousal maintenance is paid prior to the judgement of divorce.
- Permanent spousal maintenance is paid as a post-judgement obligation.
How Spousal Maintenance is Calculated
The formula is relatively complex. There are a number of factors that have to be considered before the court determines which formula applies. The formula also contains a durational calculation. This means that we are no longer subject to the whims and predilections of different judges with regard to how they view spousal maintenance. We are about to have a comprehensive statute that will assist us in advising clients and addressing spousal maintenance in a comprehensive fashion in all cases, both on a temporary and on a permanent basis.
- The formula for calculating spousal maintenance is very complex and considers a wide range of factors.
- It addresses spousal maintenance in a comprehensive manner, on both a temporary and a permanent basis.
Spousal Maintenance and Bankruptcy
The bankruptcy code is designed to relieve a person of indebtedness However, it is still concerned with that individual’s obligations to his or her family. Obligations such as maintenance – which is referred to as a domestic support obligation – will not be discharged in bankruptcy.
It should also be noted that the obligation need not be called maintenance. If it is in the form of financial support, it may be considered a domestic support obligation and not dischargeable. When entering into a separation or settlement agreement, keep in mind that you should include a provision that expressly prohibits an individual from discharging those obligations, notwithstanding what the bankruptcy code provides.
- Typically, an individual’s obligations to support his/her family will not be discharged in the case they file for bankruptcy.
- My advice is to also include a provision in the agreement that prohibits your spouse from discharging obligations to you and your children in the event they file for bankruptcy.
If you have further question on spousal maintenance, contact our office. The attorneys at Jean Mahserjian, Esq., P.C. are in Family Law with strong knowledge of spousal maintenance and support.