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NY Divorce Essentials
Maintenance in New York

Part 1

Introduction to Spousal Support in NY actions

Domestic Relations Law 236-B(6)

By J. Douglas Barics

Updated March 2016


NY Spousal Support and MaintenanceMaintenance is the term used by New York for spousal support, and is currently found in the Domestic Relations Law 236 Part B(6), 5-a. and Family Court Act 412. Maintenance may only exist between existing or former spouses, must be made pursuant to a court order or written agreement, and it must be paid in dollars; payment through services or goods will not considered maintenance. Maintenance is tax deductible to the paying spouse, and is claimed as income by the receiving spouse.


Maintenance has a long and evolving history, and to understand the current laws governing maintenance, a brief background will be helpful.


1. BACKGROUND OF NEW YORK MAINTENANCE and ALIMONY


Prior to 1980, all states, including New York, used a gender based spousal support system under which only wives were entitled to receive alimony. Alimony in New York was found in pre-1980 DRL 236. Marital fault by the wife could result in the wife being denied an an award alimony to her. In addition, under DRL 234, there is limited authority for the courts in New York to dispose of jointly held property or property for which there is no title. Alimony, both in the amount and duration, under the old DRL 236 was entirely at the judge's discretion.


In 1979, the Supreme Court decided the case of Orr v. Orr and held that gender based divorce statutes, such as New York's old DRL 236, were unconstitutional. As a result, all states revised their alimony statutes to apply equally to both genders. In addition, many states revisited the concept of marital property. Some states already recognized the concept of marital property through the premise of community property. New York, and forty other states, declined to adopt community property and instead adopted the concept of equitable distribution. Both of these revisions are found in the revised Domestic Relations Law 236, which was divided into two parts, A and B. Part A was a hold over from the old DRL 236 alimony, now revised to be gender neutral. Part B was for new actions commenced on or after July 19, 1980, with subsection 6 governing the new laws for spousal support. Old cases filed before July 19, 1980 used DRL 236 Part A and kept the term alimony, while new cases under Part B would use the term maintenance. The differences in terms was designed to clarify if the award was under Part A or Part B of the revised DRL 236.


 While the term "alimony" is no longer used by DRL 236B, this term is still used by the Internal Revenue Service and any reference to alimony by the I.R.S. should be construed as maintenance.


2. DEFINITION OF MAINTENANCE


DRL 236 B(1)(a) defines maintenance as the payment of money from a current or former spouse to the other pursuant to a written agreement or a valid court order. In order to qualify as maintenance, all three elements are required.


(a) The payment must be in money

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.


(b) The payments must be between spouses or former spouses

No other relationship other than a current or former spouse will qualify.


(c) There must be a written agreement or court order for the payments

Absent such an order or agreement, voluntary payments will not qualify as maintenance even if the other two conditions are met.


Any payment of maintenance which includes a provision that it is reduced or terminates upon a child reaching the age of majority be disqualified as maintenance and reclassified as child support.


As part of the ancillary relief to any matrimonial action, either spouse may request maintenance. Failure to make this demand will almost always prevent the court awarding maintenance at trial.


3. DEFINITION OF TEMPORARY OR PENDENTE LITE MAINTENANCE


Pendente Lite maintenance is an award of temporary maintenance prior to trial in a divorce or annulment action which is designed to allow the receiving party to sustain themselves until a final determination of maintenance is made. Under the revised DRL 236 B(5-a), the correct term is now temporary maintenance, but the terms is interchangeable with Pendente lite. Temporary orders, by definition, terminate upon a final order or judgment, and for maintenance, this includes a denial of a maintenance award. Under the revised DRL 236 B(5-a), duration and termination events are specifically listed in subsections (f) and (g).


Prior to 2010, the standard used to set a pendente lite maintenance order was to meet the current reasonable needs of the recipient spouse while the divorce is pending. In 2010, the law was amended and DRL 236 B(5-a) was added which replaced the discretionary approach to pendente lite awards with a formula approach. In 2015, DRL 236 B(5-a) was amended significantly. See Pendente Lite Maintenance issued prior to October 24, 2015.


Temporary maintenance awards now use the formula set forth in the revised DRL 236B (5-a). Temporary maintenance can only be awarded when requested by a party during the divorce action. Its duration can be set by the court to terminate prior to a final order, and terminates automatically upon the death of either spouse or the issuance of the final judgment. See Temporary Maintenance issued after October 24, 2015.


4. DEFINITION OF POST DIVORCE MAINTENANCE


Post divorce maintenance, which is also known as a final award of maintenance is a maintenance award the commences following a divorce using the formulas and guidelines set forth in DRL 236 B(6). Such final orders will either made for a fixed amount of time, called durational maintenance, or for the lifetime of the recipient spouse, and is called non durational maintenance.


Post divorce maintenance commences upon the issuance of a judgment of divorce (or other matrimonial decree). The amount and duration is governed by a formula, and to a degree, the court's discretion.


5. THE EVOLUTION OF MAINTENANCE UNDER DRL 236 B(6).


One significant initial change made in the original maintenance provision of 1980 was to provide a statutory list of factors for the court to determine a final award of maintenance. In contrast, the prior law for alimony left the determination entirely to the court's discretion.


Throughout the years, the factors to be considered by the court has been revised, with the most recent revision as of the date of this article being January 23, 2016.


(a) Evolution of Pendente Lite Maintenance


(i) Temporary maintenance from July 19, 1980 to October 11, 2010


When initially enacted, pendente lite maintenance was not bound by the factors listed in now repealed portion of DRL 236B(6). Instead, it was determined entirely on the court's discretion. Temporary support awards could range from pure direct support to the needy spouse, to a directive where the monied spouse would be directed to pay ongoing expenses while the divorce progressed. It was very common for pendente lite orders to include a combination of the two.


The premise behind these awards was to set an amount that was enough to tide over the more needy party until the trial. Pendente lite maintenance was not to determine the correct ultimate distribution. See Iannone v. Iannone. The reasoning behind this approach was that requests for pendente lite maintenance are made early in a divorce action, meaning that it was difficult if next to impossible for the court to have all the necessary information needed to consider in all the relevant factors. Much of the information would be found in discovery and presented to court in a trial, at which time the court could assess both sides evidence, after which it would a final discretionary determination based upon the factors listed in the old DRL 236-B(6).


(ii) Temporary maintenance from October 12, 2010 to October 24, 2015


On October 12, 2010, New York abandoned this discretionary approach for temporary maintenance and and replaced it with a mathematical formula that only took income into account. No other factor was considered, and a temporary award for a two month marriage would be the same as one for a twenty year marriage. The theory behind this revision was the court had too much discretion in temporary awards and greater consistency and predictability was needed at the expense of discretion.


Oddly enough, the 2010 amendment kept the discretionary approach for final maintenance.


Temporary maintenance was given its own new section in Domestic Relations Law 236 Part B, with the new subsection (5-a) being added. No change was made at that time to the discretionary method for awarding final maintenance under DRL 236 B(6).


The 2010 revisions to pendente lite maintenance took a one size fits all approach, and required the use of a formula to determine maintenance, with the sole factors being the income of the parties. The length of the marriage, age of the parties, or any other factor was not a consideration in determining pre-trial maintenance. The result was when there was no basis for final maintenance, the spouse with the lesser income could be awarded an extremely generous pendente lite award. Upon being granted such an award, there was a great incentive for the receiving spouse to delay a trial as long as possible, since the formula approach would terminate upon a trial, and only then could the court consider other factors besides income.


Absent from the 2010 amendment was any provision for the payment of ongoing expenses. Thus, a literal reading of the statute would result in the monied spouse being ordered to pay a significant portion of his or her income to the non monied spouse, without any requirement as to the payment of existing monthly expenses. For households where the monied spouse's income exceeds expenses by approximately 30 percent or more, the obligations imposed by (5-a) would be sustainable. But for those households which lacked this monthly surplus, the results could be disastrous.


A common solution to this problem would be for the monied spouse to seek a contribution towards the monthly expenses from the spouse who was awarded pendente lite support.


The 2010 pendente lite rules created other problems too. In conjunction with the 2010 addition of DRL 236B(5-a), counsel fee awards under DRL 237 was revised to create a presumption of an award of counsel fees from the monied spouse to the non monied spouse. While noble in theory, the presumption of an award of counsel fees combined with the significant income shifting provision of DRL 236 B(5-a) resulted in the court being required to award more money than existed, except for wealthy households. Of course, since many cases involve hiding income and assets, the discovery of these assets requires time, both on the part of the parties and valuable court time. By its very definition, pendente lite relief presumes there is insufficient time or resources to flesh these issues out fully.


To address this issue, the courts applied the language in the statute to the financial status of the parties following the income shifting from the pendente lite maintenance award, and if circumstances warranted, the spouse with the higher income would be found to no longer be the monied spouse for purposes of DRL 237's presumption of a counsel fee award, thus giving the court additional discretion to fashion an award based upon the realities of each case, such as monthly expenses and other factors that were not part of the statutory scheme.


The original DRL 236 B(5-a) remained in place to October 24, 2015, when it was amended following widespread criticism. It remains in effect for actions commenced between October 12, 2010 to October 24, 2015.



(iii) Pendente lite maintenance for actions filed on or after October 25, 2015


In 2015, the maintenance laws were again revised, taking effect on October 25, 2015. DRL 236 B(5-a) was amended to significantly revise the formula for pendente lite maintenance, and to cure many of the defects in the original (5-a). The revised (5-a) clarified several definitions, authorizes the court to limit awards of temporary maintenance if circumstances warrant, and allow the court greater discretion to consider other factors besides simply income.



(b) The Evolution of Final Maintenance


(i) Alimony prior to July 19, 1980


Under the old, pre-equitable distribution law of DRL 236, there was no authority to award property except in limited circumstances. In fact, there was no provision for the concept of marital property. By and large, the sole remedies available to spouses was for an award of certain assets under DRL 234, the imposition of a constructive trust, which is difficult to prevail, and for wives only, an award of alimony.


DRL 236 made alimony dependent upon the grounds for divorce, if the wife failed to establish grounds, she could be denied alimony. Since adultery allows four affirmative defenses, a wife could be denied alimony if the husband could prove his adultery was caused by the wife, forgiven by the wife, or if the wife also committed adultery, or if more than five years passed since the discovery of the adultery. Since adultery was the only grounds for a divorce until 1966, marital fault played a tremendous role in determining whether even the right to alimony existed. Even after other fault based grounds were added over time, the issue of grounds could not be ignored.

.
Following the
Orr v Orr decision, DRL 236 was quickly amended to make it gender neutral. Shortly after that, DRL 236 was again amended, making the old DRL 236 into DRL 236 Part A, and the new
Part B was added. Part A kept the term of alimony, and applied to actions commenced prior to July 19, 1980, while the new actions would be governed by Part B, which used the term maintenance to differentiate it from Part A.


(ii) Maintenance from July 19, 1980 to January 22, 2016


Maintenance under
DRL 236 B(6) provided specific factors for the court to consider when awarding maintenance, but final discretion as to whether or not to make an award, the amount of the award, and the duration of the award were entirely in the court's discretion. The factors themselves were amended numerous times. This discretionary approach was abandoned and replaced by a formula approach. For divorces filed prior to January 23, 2016, the old law still applies, and the court will consider the twenty statutory factors listed in the prior version of
DRL 236B(6).


(iii) Maintenance for actions filed on or after January 23, 2016


For divorce actions filed on or after January 23, 2016, the new formulas set forth in the amendments to
DRL 236 B(6) apply. The revisions do the following.


Income is now more clearly defined, and is nearly identical to the definition of maintenance for child support.


Maintenance now depends if there is a child support order in place. Two formulas are provided, one for when there is child support, and one for when there is not. Within each formula, maintenance is calculated using two methods, with the lower amount being used.


The amount of income to be used in determining maintenance is capped. This amount is subject to being adjusted every two years. As of March 2016, the cap is $178,000. For income above the cap, the court is required to determine any additional maintenance should be awarded, and if so, the amount, using a revised set of factors.


The court may also deviate from the guidelines if it finds the guidelines unjust or inappropriate. The court is required to state the reasons in making this determination.


The duration of maintenance is also based upon a non mandatory advisory schedule.


    For a marriage of 0 to 15 years: 15% to 30% of the length of marriage.


    For a marriage over 15 years to 20 years: 30% to 40% of the length of marriage


    For a marriage over 20 years: 35% to 50% of the length of marriage


The court is required to state if it used the advisory schedule or not, and is also required to use the factors new listed in DRL 236B(6).


The court is expressly authorized to award lifetime maintenance in an appropriate case.



6. EFFECTS OF GRANTING OR DENIAL OF A DIVORCE


If a divorce is granted, the court has the discretion to award either durational or non durational maintenance. Prior to the 2016 amendment to the maintenance laws, if a divorce is denied for any reason, and the court makes an award of maintenance, then the court may award only nondurational maintenance. See Garver v. Garver, 253 AD2d 512 (2nd Dept. 1999).


Garver was decided prior to the 2016 amendment of DRL 236 B(6). However, the revised statute specifically states that it applies only to post divorce awards. Since DRL 236 B(5-a) terminates upon judgment, including a judgment that denies a divorce, it does not appear that section 6 would apply.


Given the adoption of no fault divorce under DRL 170(7), the denial of a divorce will rarely be a factor.


In the rare instances where a divorce is denied, the Supreme Court would likely use Family Court Act 412 to fashion an award of maintenance.



7. FAMILY COURT


A spouse has the right to seek an order of support in Family Court under F.C.A. 412. However, if a judgment of divorce does not award maintenance, there is no right to seek maintenance in Family Court, as F.C.A. 412 allows only a married person to seek support from his or her spouse; no provision exists in F.C.A. 412 for former spouses.



8. RETROACTIVE MAINTENANCE


Traditionally an award of final maintenance was retroactive to the date that it was first requested, which is service of the summons and complaint (or summons with notice) containing the demand for maintenance. A request for pendente lite maintenance is retroactive to the date of the motion. In calculating any retroactive maintenance, any payments made under a pendente lite order will be credited in determining the total retroactive amount. However, should the payments under the pendente lite order exceed the total due under the final order, the payor is not entitled to a credit. See Rodgers v Rodgers, 98 A.D.2d 286 (2nd Dept. 1983), Foxx v. Foxx, 114 A.D.2d 605 (3rd Dept. 1985). However, overpayments in temporary maintenance may be offset by an adjustment in equitable distribution. See Johnson v Chapin, - N.Y3d -, 2009 WL 1227869 (2009)


With the revisions to maintenance, the statute implies that retroactive maintenance may be a thing of the past. The revised DRL 236 B(6) specifies that it is limited to post divorce maintenance only, which would imply that it commences only when the judgment of divorce is issued.


However, as the statute defines the length of marriage as ending when the summons is filed, it would appear that post marriage maintenance could allow for retroactive maintenance through the date the summons was filed. This would be consistent with old law, and the legislative intent.


However, the use of two different terms may result in the need for courts to clarify if post divorce under DRL 236 B(6) means post marriage as defined under DRL 236 (B)(6)(b)(8).



9. MODIFICATION AND TERMINATION OF MAINTENANCE


Pursuant to DRL 248, the court must terminate maintenance paid to a former spouse upon proof the former spouse is remarried. At the court's discretion, maintenance may be terminated proof that the former spouse is habitually living with another person and holding themselves out to be a spouse.


The 2016 revisions to DRL 248 make it gender neutral, both for the payee recieving the spouse, and the nature of the marriage. Prior to the revision, Section 248 only applied to former wives living with men, although it would have been highly unlikely that a gender based application would gave been enforced. The revised section 248 now applies equally to men and women. Moreover, the terms spouse is gender neutral, also making section 248 applicable to gay marriages, or gay couples holding out to be marriage.


Merely living together is insufficient, as illustrated in Bliss v. Bliss, 66 NY2d 382 (Court of Appeals 1985). In Bliss, the ex wife lived with her male companion for over fourteen years, but the ex husband's request to terminate support was denied as there was no proof she was holding herself out to be married. Nor can a court impose a lesser standard to terminate the maintenance. In Florio v. Florio 25 A.D.3d 947 (3rd Dept. 2006) the trial court awarded maintenance to the wife, and ruled that it may be terminated upon her cohabitation with an unrelated male. In modifying this provision, the Appellate Division said it was erroneous to set a standard that differed from the statute.


Maintenance may also be modified pursuant to DRL 236 B(9)(b), which provides in part that:


    Upon application by either party, the court may annul or modify any prior order or judgment made after trial as to maintenance, upon a showing of the payee's inability to be self-supporting or upon a showing of a substantial change in circumstance, including financial hardship or upon actual full or partial retirement of the payor if the retirement results in a substantial change in financial circumstances. Where, after the effective date of this part, an agreement remains in force, no modification of an order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the judgment or order as modified shall supersede the terms of the prior agreement and judgment for such period of time and under such circumstances as the court determines.

Thus, the standards for a modification are different for an order issued after trial or by agreement. Full or partial retirement is now recognized as a basis to seek a modification.



10. TAX ASPECTS OF MAINTENANCE


Maintenance is normally deductible from the paying spouse and is considered income to the recipient spouse. The court has the authority to make the maintenance tax free to the recipient spouse, which results in no deduction for the paying spouse.


Should maintenance exceed $15,000 per year, they payments must be required for at least three years. Failure to meet this requirement can result in the IRS recapturing the front loaded maintenance, and denying the deduction to the paying spouse.


For further information, see IRS Publication 523.


Continue to Part 2


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The article "Maintenance in New York Part 1 Introduction to Spousal Support in NY actions" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com.


Copyright © 1998-2016 by J. Douglas Barics, attorney-at-law. All rights reserved.
J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.



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