Spousal Maintenance in New York Divorces
By J. Douglas Barics
Updated July 2011
In 1980, New York abolished the old gender based alimony under which only wives were entitled to receive, and amended Domestic Relations Law Section 236. Part A of this law applied to cases filed before July 19, 1980, and kept the term alimony which was changed to be gender neutral. All cases filed after this date would be governed by DRL 236 Part B(6), which uses the term maintenance. The difference in terminology was used to distinguish the old cases from the new ones, as DRL 236 B's maintenance section was enacted in conjunction with DRL 236B(5), which gave courts the authority to equitably distribute marital property. DRL 236 was amended following the 1979 Supreme Court case of Orr v. Orr which held that gender based divorce statutes, such as New York's old DRL 236, were unconstitutional.
Unlike alimony, maintenance is intended to be rehabilitative whenever possible, and may be awarded to either spouse regardless of gender. 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.
1. 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 a divorce action, either spouse may request maintenance. Failure to make this demand will almost always prevent the court awarding maintenance at trial.
2. PENDENTE LITE MAINTENANCE
Pendente Lite maintenance is an award of temporary maintenance early in a divorce action which is designed to all the receiving party to maintain the pre divorce status quo until a final determination of maintenance is made. Pendente lite orders, by definition, terminate upon a final order or judgment, including a denial of a maintenance award. The standard used to set a pendente lite maintenance order is to meet the current reasonable needs of the recipient spouse while the divorce is pending. A hearing is not required to determine pendent lite maintenance, but it can be ordered at the court's discretion. Most pendente lite awards are made on sworn statements of net worth and sworn affidavits.
For all divorce and annulment actions filed after October 12, 2010, new rules for temporary maintenance apply. The new rules use a formula to determine support which is based on the income of the parties alone. The length of the marriage is not a factor.
3. FINAL ORDER OF MAINTENANCE
A final order of maintenance will be issued by the court as part of a judgment of divorce based the eleven statutory factors of 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
Durational maintenance is a final order of maintenance which is paid for a fixed set of time that is established upon the issuance of the final order. Upon the conclusion of that time period, the maintenance ends without the need for further court intervention. Note that durational maintenance is sometimes called temporary maintenance, and should be confused with pendente lite maintenance, which is also sometimes called temporary maintenance.
Nondurational or lifetime maintenance is a final order of maintenance which lasts for the duration of the recipient's lifetime. Nondurational maintenance will be awarded when rehabilitative maintenance is inappropriate under the specific circumstances. Lifetime maintenance is authorize under DRL 236 B(6)(c).
4. 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. However, if the divorce is denied for any reason, the court may award only nondurational maintenance. See Garver v. Garver, 253 AD2d 512 (2nd Dept. 1999).
5. FAMILY COURT
A spouse has the right to seek an order of support in Family Court under FCA 412. However, if a judgment of divorce does not award maintenance, there is no right to seek maintenance in Family Court, as FCA 412 allows only a married person to seek support from his or her spouse; no provision exists in FCA 412 for former spouses.
6. THE TWENTY FACTORS USED TO DETERMINE MAINTENANCE: DRL Section 236-B(6)
When a final order of maintenance is awarded, the courts will use the twenty factors set forth in Domestic Relations Law Section 236-B(6). Unlike child support or temporary maintenance, both of which use a mathematical formula, an award of final maintenance is solely at the court's discretion. For actions commenced under the old law, the old statutory factors are used.
Factor 1: The income and property of the respective parties including marital property distributed pursuant to subdivision five of this part. DRL 236-B(6)(a)(1)
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.
Factor 2: The length of the marriage. DRL 236-B(6)(a)(2)
The length of the marriage by itself will not determine whether or not a final award of 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. Note that the length of the marriage is not considered under the temporary maintenance formula.
Factor 3: The age and health of both parties. DRL 236-B(6)(a)(3)
The age of the parties by itself will not determine whether or not maintenance is awarded or the amount, but it will be a significant consideration in conjunction with other factors. The age of the parties will be used to determine the ability of each party's ability to earn income, which in turn, will be used to determine maintenance. Note that the age of the parties is not considered under the temporary maintenance formula.
Factor 4: The present and future earning capacity of both parties. DRL 236-B(6)(a)(4)
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. In Arnone v. Arnone, 36 A.D.3d 1170 (3rd Dept. 2007) the wife was denied an award of maintenance despite her limited work history for the parties 23 year marriage, finding that she made no efforts to return to the workforce.
Factor 5: The need of one party to incur education or training expenses. DRL 236-B(6)(a)(5)
Both the need of the party seeking education, as well as the cost of that training are used to determine maintenance.
Factor 6: The existence and duration of a pre-marital joint household or a pre-divorce separate household. DRL 236-B(6)(a)(6)
This factor has to prongs. The first is if the parties lived together before marriage, that joint lifestyle can now be considered by the court. The second is the court may consider the separate household lifestyle that each party had before the marriage when determining maintenance.
Factor 7 Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law. DRL 236-B(6)(a)(7)
A party's actions which specifically inhibit the other party's ability to be self sufficient will be a factor in determining maintenance. This provision is remedial on the recipient spouse and punitive on the paying spouse.
Factor 8: The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor. DRL 236-B(6)(a)(8)
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. In Mora v. Mora 39 A.D.3d 829 (3rd Dept. 2007) the wife was denied extended maintenance despite being disabled, as she could earn an living as a computer specialist.
Factor 9: Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage. DRL 236-B(6)(a)(9)
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.
Factor 10: The presence of children of the marriage in the respective homes of the parties. DRL 236-B(6)(a)(10)
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.
Factor 11: The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity. DRL 236-B(6)(a)(11)
The existence of family members of either spouse, who inhibited a party's ability to earn income is a factor that will be considered by the court. This is a separate factor from the presence of children. See Factor 10 above.
Factor 12: The inability of one party to obtain meaningful employment due to age or absence from the workforce. DRL 236-B(6)(a)(12)
The inability to work and the level of income available from working as it relates to to age or the length of time away from the workforce will both be a factor in determining maintenance.
Factor 13: The need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment. DRL 236-B(6)(a)(13)
Child expenses can be a factor in determining maintenance, even though these expenses may already be part of a child support award under DRL 240.
Factor 14: The tax consequences to each party. DRL 236-B(6)(a)(14)
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.
Factor 15: The equitable distribution of marital property. DRL 236-B(6)(a)(15)
Any property award under equitable distribution may be a factor considered by the court in determining maintenance.
Factor 16: Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. DRL 236-B(6)(a)(16)
Contributions refers to both the financial and non financial contributions made to the marriage and to other spouse. Payments for school, 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.
Factor 17: The wasteful dissipation of marital property by either spouse. DRL 236-B(6)(a)(17)
Wasteful dissipation of marital assets by a spouse may be offset by awarding the other spouse an award of maintenance.
Factor 18: The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration. DRL 236-B(6)(a)(18)
Transfers made in contemplation of a divorce case for less than fair market value can be offset by an award of maintenance.
Factor 19: The loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties. DRL 236-B(6)(a)(19)
The loss of insurance benefits and the cost of obtaining new insurance can be a factor in determining maintenance.
Factor 20: Any other factor which the court shall expressly find to be just and proper. DRL 236-B(6)(a)(20)
A "catch all" factor, the court may consider anything else it deems relevant.
7. RETROACTIVE MAINTENANCE
An award of final maintenance is 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. Likewise, 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)
8. MODIFICATION AND TERMINATION OF MAINTENANCE
Pursuant to DRL 248, the court must terminate maintenance paid to the wife upon proof the wife is remarried, and at the court's discretion, may terminate maintenance upon proof that the wife is habitually living with another man and holding herself out as his wife although not married to such man. This statute applies only to maintenance which is court ordered, and appears to be a relic of the past. Most divorce stipulations of settlement will provide that maintenance will terminate upon either remarriage or upon cohabitation with an unrelated male (or female if the the recipient is the husband). 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.
It is unlikely that a court would deny a wife's application to terminate her maintenance payments to her ex husband despite the language of the statute, as the legislative intent was to make the Domestic Relations Law gender neutral following the United States Supreme Court decision of Orr v Orr. DRL 248 applies only to maintenance ordered by the court and not to maintenance pursuant to a stipulation.
Maintenance may be modified pursuant to DRL 236 B(9)(b), which provides that
"Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance or termination of child support awarded pursuant to section two hundred forty of this article, including financial hardship. Where, after the effective date of this part, a separation agreement remains in force no modification of a prior 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 to modify an award of maintenance based upon a stipulation of settlement, the moving party must show extreme hardship.
9. 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.
The article "Spousal Maintenance in New York Divorces" 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 firstname.lastname@example.org or (516) 742-2600. For more articles and information, please visit www.jdbar.com.
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