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Maintenance in New York

The current law for maintenance was enacted in 1980 under Domestic Relations Law Section 236-B(6). In order to distinguish old cases from the new ones, the term alimony was left for old divorce actions, while the term maintenance was adopted for new actions. One of the many differences between alimony and maintenance was that only wives could received alimony. Such gender based statutes were deemed unconstitutional by the United States Supreme Court in Orr v. Orr 440 US 268 (1979).

Maintenance may be awarded to either spouse without regard to gender, and unlike alimony, is intended to be rehabilitative. While New York no longer uses the term "alimony" it is used by the Internal Revenue Service does, and any reference to alimony by the I.R.S. should be read as maintenance.

Definition of Maintenance

Maintenance is defined as the payment of money from one spouse or former spouse to the other spouse pursuant to a court order or written agreement. All three of these elements must be met. Payment in money includes payment by check, money order, wire transfer, or any other means to transfer cash. It excluded what is called "payment in kind" which is goods or services. The payments must be between spouses or former spouses, any other relationship will not qualify. And last, there must be a court order or written agreement for the payments to qualify, voluntary payments of cash between a spouse or former spouse will not suffice.

In addition, any payment of maintenance that is terminates or is reduced upon a child reaching the age of majority will not be considered maintenance, but will be reclassified as child support.

Either spouse may request maintenance as part of a divorce. In order to do so it must be requested as part of the ancillary relief requested in the complaint or the answer. Failure to make a demand for maintenance in the pleadings will almost always preclude maintenance from being requested at trial.

Pendente lite maintenance

The court is authorized to award maintenance after a divorce action is commenced but before the trial itself by the filing of a motion for pendente lite relief. Any order made pendente lite terminates upon the final resolution of the case, and is replaced by any final order of maintenance, or lack thereof. The standard used to set an award of pendente lite maintenance is not based on the statutory factors, listed below, but instead it is designed to meet the current needs of the spouse while the divorce action is pending. Pendente lite maintenance will often be determined by the motion's supporting affidavits, exhibits and statements of net worth; a hearing is not necessary and is quite rare.

Final Maintenance

A final award of maintenance can be determined only at the conclusion of a divorce, either by trial or by settlement. If the court decides, it will do so based on the eleven statutory factors listed in DRL 236-B(6). The court will also decide if a final award will either be for the lifetime of the spouse, or for a fixed amount of time. Lifetime maintenance is called non durational maintenance, while maintenance which is for a set time is called durational maintenance.

Domestic Relations Law Section 248 provides for the circumstances under which maintenance may terminate. Maintenance must end upon proof that the wife is remarried, and may end at the court's discretion upon proof the wife is habitually living with another man and holding herself out to be his husband. Section 248 is controlling only if the maintenance is awarded after a trial; if the parties have entered into a stipulation of settlement which includes a provision for maintenance, they are free to set forth their own conditions upon which the maintenance will end. Most often, these terms will vary significantly from the provisions of D.R.L. 248.

Durational maintenance, which is sometimes called temporary maintenance, is a final order of maintenance which is paid for a set duration of time which is established when the maintenance is awarded. At the end of that time period, the maintenance ends without the need for further court action. A final award of temporary maintenance should not be confused with a pendente lite award of maintenance, which can also be called temporary maintenance.

Statutory Factors Used to Determine Maintenance: D.R.L. Section 236-B(6).

Unlike child support, there is no set formula for determining the dollar amount of maintenance. Instead, when a final order of maintenance is awarded, the courts will use the factors set forth in Domestic Relations Law Section 236-B(6).

  • The income and property of the respective parties including marital property distributed pursuant to equitable distribution:

    The income of each party will naturally be a consideration, the less the income, the greater the need for maintenance, especially of the other spouse's income is significantly greater. All property, including the nature of the property will be considered as well. Income producing property or a distributive award of a pension may reduce the need for an award of maintenance.
  • The duration of the marriage and the age and health of the parties.

    The length of the marriage by itself will not determine whether or not maintenance is awarded, but it will be a significant consideration in conjunction with other factors. The longer the marriage, the greater an effect the other factors will play.
  • The present and future earning capacities of both parties.

    The current and probably future income of each spouse will often be used to determine if a party is able to be self sufficient or requires an award of maintenance.
  • The ability of the party seeking maintenance to become self supporting.

    Any steps a party can take to become self sufficient will be considered. This factor will often be used to determine both the duration and the amount of any maintenance. A common example of this factor is the need for one spouse to return to school before returning to the workforce.
  • Whether there is a reduced or lost earning capacity of the party seeking maintenance which resulted from forgoing or delaying training or employment during the marriage.

    The existence of reduced or lost earning capacity will often determine whether or not maintenance is awarded, with the goal of maintenance being to help bridge the gap until the lost earning capacity is regained or minimized.
  • The presence of children of the marriage in the respective homes of the parties.

    The presence of children will generally in itself not determine whether or not maintenance will be awarded, but children will play a significant factor when combined with the financial circumstances of the parties.
  • Tax consequences to the parties.

    Mindful of the fact that maintenance is a tax deduction to the paying spouse and is income to the recipient spouse, the courts will consider the tax implications to each spouse. Experts may be needed in complex situations to fully understand the tax impacts.
  • Contributions and services of the party seeking maintenance.

    Contributions refers to both the financial and non financial contributions to the marriage and other spouse. Payment for school, or the use of marital funds to form a business are examples of financial contribution, while taking care of children to allow the other spouse the time to advance his or her own career is an example of a non financial contribution.
  • Wasteful dissipation of marital assets by either party.

    Wasteful dissipation of marital assets by a spouse may be offset by awarding the other spouse an award of maintenance.
  • Transfers made in contemplation of a matrimonial action at below market value.

    Transfers made in contemplation of a divorce case for less than fair market value can be offset by an award of maintenance.
  • Any other factor the court determines as relevant.

    A "catch all" factor, the court may consider anything else it deems relevant.


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