New York Spousal Support Attorney

Spousal Support

Spousal support (also known as maintenance) is a complicated and nuanced issue that requires the experience of a savvy divorce lawyer who will advocate for your rights. Adam J. Peretz, Esq., of Peretz Family Law & Mediation, P.C. is such an attorney.

In New York, spousal support is governed by the Domestic Relations Law Section 236 [B] and is now called spousal maintenance, or just maintenance. Maintenance is the payment of money from one spouse to another by Court Order, such as a Judgment of Divorce, or by a written agreement between the parties. Maintenance can be paid as a result of an action for divorce or from a request for maintenance in a Family Court proceeding. In order to receive an award of maintenance, the parties must be or must have been previously married. Both spouses have the legal right to request maintenance at the beginning of a divorce, but the typical scenario is the spouse with more income and/or assets is going to provide maintenance to the spouse with less or no income and/or assets during the divorce action (often referred to as pendente lite support) and possibly for a period of time after the parties become divorced.

Unlike child support, there is no set formula by which maintenance is calculated after a divorce or a Family Court spousal support proceeding. And although possible, maintenance is typically not Court Ordered for life, but rather for a period of time to allow the spouse to become self-supporting after the divorce. There are several factors for the Court to consider when awarding maintenance:

the income of the parties
the property of the parties
the duration of the marriage
the age and health of the parties
the present and future earning capabilities of the parties
the ability of the party seeking maintenance to become self-supporting
the decrease in earning capacity of the party seeking maintenance because of not working or seeking higher education during the marriage
the number of children
tax implications (maintenance can be taxable as income to the recipient spouse)
the contributions of the party seeking maintenance to the marriage
the wasteful dissipation of assets by either party
the below market value transfer of assets in contemplation of divorce
any other factor the Court wishes to consider

There is a new law, which went into effect on October 15, 2010, which amended the Domestic Relations Law, Section 236[B], in an attempt to create a more consistent and predictable law when a court calculates temporary maintenance awards, given during a pending divorce proceeding. The reform offers judges a formula and process for determining the presumptive amount of temporary maintenance awards to the spouse with less income and resources. There are several factors that the court can consider when determining whether a spouse should receive temporary maintenance from the other spouse, and in what amount.

An interesting caveat: In a recent New York Court of Appeals case, the Court considered the use of marital money to pay off one spouse's separate debts. The Court stated that the parties' choice of how to spend money during the marriage should ordinarily be respected. This does not mean that if you are contemplating a divorce, you should go on a spending spree or expect that all of your separate debts should be paid off with marital assets. The Court will consider whether to credit one spouse when the other spouse used marital funds to pay down his or her separate debts, when equitable distribution of assets occurs in a divorce.

The determination if an award of maintenance is appropriate, and if so, how much and for how long, is a very involved and nuanced process, further complicated by the new amendment to the Domestic Relations Law.
If you are contemplating an action for divorce or for spousal support, please contact Peretz Family Law & Mediations, P.C.