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 (called temporary maintenance or temporary spousal support) 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 (the "monied spouse") is going to provide maintenance to the spouse with less or no income and/or assets (the "non-monied spouse") during the divorce action (often referred to as pendente lite support) and possibly for a period of time after the parties become divorced.

Until recently there was no set formula by which maintenance is calculated after a divorce or a Family Court spousal support proceeding. However, effective as of October 25, 2015, there are now guidelines for temporary spousal support during a divorce proceeding. This is a brand new an evolving area of martimonial law, with few, if any, cases as precedent, as the statute was just amended and just became effective in October 2015. There is now a presumption that the non-monied spouse will receive temporary spousal support during a divorce proceeding.

There is an income cap of $175,000 used to calculate temporary spousal support awarded during the divorce proceedings. (There is a spousal support calulator available at the Unified Court System website: www.NYCourts.gov). When the payor spouse's income exceeds the $175,000 cap, the court has the discretion to award additional spousal support, if the facts and circumstances are appropriate.

And effective on January 25, 2016, there are new guidelines for the award of spousal support after the parties are divorced. Spousal support is considered income to the spousa receiving the spousal support. There is an advisory durational formula to help a court calculate spousal support after a divorce. For example:

0 - 15 year marrriage: the duration of spousal support is 15% - 30% of the time of the marriage, or two months to 4 1/2 years

15 - 20 year marriage: the duration of spousal support is 30% - 40% of the years of the mariage, or 4 /12 years to 8 years

over 20 year marriage: the duration of spousal support is 35% - 50% of the years of the marriage, or at least 7 years

And although possible, maintenance is typically not Court Ordered for life (called "non-durational" support), 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 new law modifies the law which went into effect on October 15, 2010, which amended the Domestic Relations Law, Section 236[B]. 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.