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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.
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 New York court requires that divorcing spouses attend a preliminary conference, at which the parties try to decide occupancy of the marital home, daily care for any children and payment of expenses. At the conference, the spouses also discuss exchanging of the following information that includes net worth statements, appraisals of pensions and real estate, interrogatories (formal written questions), and the taking of depositions.
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