Spousal Support or Spousal Maintenance in New York State
In many cases, one spouse seeks support from the other spouse, either for a set number of years or for an indefinite period of time. That support can either be called spousal support or spousal maintenance.
Spousal support is awarded in Family Court. The Family Court Act allows a support proceeding to be commenced by a married person. There is no requirement that the parties be separated for a Court to award spousal support. In many cases, a spouse seeks spousal support in Family Court because they have not commenced a divorce action.
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When a spousal support award is made in Family Court, the Court does not set time limits on the award. That means that the spousal support award can last for many years. To terminate or modify spousal support, one of the parties has to petition the Court for a modification of spousal support. If there is no modification, spousal support will only end after a Divorce. If there is a Divorce action commenced in Supreme Court, Supreme Court would address the issue of spousal maintenance. The determination of spousal maintenance and the grant of a Divorce will terminate any existing Family Court spousal support award.
If a husband and wife are negotiating a divorce or separation, or going to court to obtain a divorce, they will address the issue of spousal maintenance.
The award of spousal maintenance is based upon a number of factors, all of which are defined in the New York Domestic Relations Law. The most important factor to be considered is the parties’ standard of living.
Spousal maintenance is set either for life or for a specific period of time. The overwhelming majority of Divorce cases result in spousal maintenance awards that last for a specific number of years only.
Spousal support and maintenance are gender neutral. Courts can, and do, award spousal maintenance to men and women. However in the New York Courts, there are many fewer cases where men have sought spousal support or maintenance. This is simply because in more households the Husband is the primary wage earner and the Wife is the primary caretaker. Spousal support and maintenance are decided based on income and earning potential.
Statutory Maintenance Factors In Divorce Actions
When the parties are contemplating a separation or divorce, spousal maintenance is determined by considering a number of factors. The overriding and significant determining factor is standard of living. There are also a number of other factors that must be considered. The following outline sets forth the factors that a New York Supreme Court must consider in determining a request for spousal maintenance:
The income and property of the parties including marital property distributed as part of Equitable Distribution.
Courts are required to consider the property owned by both parties. They will consider all property that was defined when the couple Equitably Distributed their property. This includes property obtained by either spouse during or even prior to the marriage. If the person seeking spousal maintenance will receive a significant amount of property as a result of Equitable Distribution, or if that person has significant other resources, such as an inheritance, the award of spousal maintenance will be lower than if those if factors had not been present.
The duration of the marriage and the age and health of the parties.
A long-term marriage will often result in a greater spousal maintenance award than a short-term marriage. If a spouse has been a homemaker or earned considerably less than the payor spouse, those factors will be critical especially in a long-term marriage. A spouse who has cared for home and hearth in lieu of building a career will, over time, lose the ability to pursue a career fully. The spousal maintenance award will reflect that. If one spouse is in poor health or of an advanced age, the spousal maintenance award may be greater.
The present and future earning capacity of both parties
In determining maintenance, the Court will focus on both the current status of the person seeking support and his or her future ability to be self-supporting. If the person has the ability to obtain employment or education and eventually become self-supporting, any maintenance award will be of shorter duration.
The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary for the party to become self supporting.
An overriding purpose of the spousal maintenance provisions in the New York Domestic Relations Law is to provide the person receiving support with an opportunity to achieve financial independence. In considering maintenance the Court’s focus will be upon the financial future of the recipient. If maintenance is awarded, it can be limited to the time period needed for the recipient spouse to pursue additional educational opportunities or to build a career. If the person seeking maintenance truly lacks the ability to become self-supporting, due to age or other factors, the Court will structure maintenance to address the person’s financial limitations.
The reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having forgone or delayed education, training, employment or career opportunities during the marriage.
This factor addresses the lifetime impact that the parties’ family choices have upon the financial security of one of the parties if they Divorce. It is common for spouses to decide that one person will be the primary caretaker for the children and the home while the other person pursues a career and provides economically for the family. While this arrangement works well for intact families, the result of that decision can be devastating to one spouse if the parties Divorce. New York law acknowledges the lasting impact a spouse’s decision to forego career, educational or employment opportunities can have. In many instances, it is impossible for that spouse to resume their career after five, ten, or twenty years of marriage. The amount of spousal maintenance awarded in such cases much include a consideration of the stay at home partner’s loss of lifetime earnings.
The presence of children of the marriage in the respective homes of the parties.
If the person receiving support is the primary caretaker of unemancipated children, the Court must also consider the need, if any, of the parent to be with the children. If, due to young age or ill-health, the ability of the custodial parent to work outside of the home is limited, the Court must determine if Child Support alone is sufficient to enable that person to meet his or her reasonable expenses, as well as those of the children. If not, an additional award of maintenance is a proper remedy.
The tax consequences to each party.
Spousal maintenance is considered income. A person receiving spousal maintenance must claim the amount received as income on his or her Federal and State income tax returns. Conversely, the person paying support is entitled to an income tax deduction. In considering the amount of spousal maintenance to be awarded, the Court will consider the impact of taxes on any support paid or received.
The contributions and services of the party seeking maintenance as a spouse, parent, wage earner, homemaker and to the career or career potential of the other party.
Financial contributions are not the only contributions which couples make during the course of a marriage. This factor recognizes the non-financial contributions of spouses. Where one person has not worked, but has contributed as a spouse, parent or homemaker, or has assisted the other spouse in advancing his or her career, the Court must recognize these important contributions in structuring a fair and equitable maintenance award.
The wasteful dissipation of marital property by either spouse
When one spouse frivolously spends or dissipates a marital account or other asset, he or she will be deemed to have wastefully dissipated the asset. This is especially crucial when Courts are dividing property under Equitable Distribution. If a marital asset is no longer in existence because one spouse wasted it, the Courts can require that spouse to pay the other spouse his or her equitable share in the asset. The Court can also Order the payment of spousal maintenance to help to alleviate the effect of wasteful dissipation. Such a remedy is effective in a case where the payor spouse has reduced the assets available for Equitable Distribution, but has sufficient income to provide for the recipient spouse at a level that accounts for the dissipation.
If, the person seeking maintenance, has wastefully dissipated assets, this waste could serve to reduce the amount of maintenance they would otherwise receive.
Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration
The total assets of the party will be considered including those that have been knowingly transferred after, or just prior to, a Divorce or Separation action being commenced. The Courts will consider such a transfer as a deliberate action to effect the outcome of Equitable Distribution. As with assets that have been wastefully dissipated, those that have been transferred in such a manner can still be considered part of the marital estate. Just because the asset is no longer in existence will not deprive the “innocent” spouse from receiving money or property as his or her share of the missing asset. Courts can consider those transfers part of the marital estate and include them in structuring awards of spousal maintenance.
Any other factor which the Court expressly finds just and proper
Other factors that Courts have consider include marital fault, such as adultery, which contributed to the breakdown of the marriage. While Courts will consider marital fault, fault itself will not determine spousal maintenance.
Termination Events
Spousal maintenance awarded in a divorce action (or as a result of a separation or settlement agreement) can end upon the death of either person, or upon the remarriage of the person receiving the spousal maintenance, or after a certain number of years of payment, or upon the occurrence of any other event that is agreed upon. If the parties are entering into an agreement, they have more flexibility to define when spousal maintenance will end than they would have if they left that issue to a court to decide.
Maintenance can also be secured by life insurance. Thus, if the spouse receiving the maintenance is in need of support for a certain period of time, life insurance can be used to guarantee those payments in the event of the death of the other spouse.