Actions Commenced Prior to October 12, 2101:
The Eleven Factors for Determining Spousal Maintenance in New York Divorces
DRL 236-B(6)
By J. Douglas Barics
Updated July 2011
 On October 12, 2010, New York amended the factors used in determining spousal maintenance. For actions commenced before the law went into effect, the old eleven factors still apply
THE ELEVEN FACTORS USED TO DETERMINE MAINTENANCE FOR ACTIONS COMMENCED PRIOR TO OCTOBER 12, 2010: DRL Section 236-B(6)
When a final order of maintenance is awarded, the courts will use the eleven factors set forth in Domestic Relations Law Section 236-B(6). Unlike child support which uses a mathematical formula, maintenance is solely at the court's discretion.
Factor 1: The income and property of the respective parties including marital property distributed pursuant to equitable distribution. 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 duration of the marriage and the age and health of the parties. DRL 236 B(6)(a)(2)
The length of the marriage by itself will not determine whether or not 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.
Factor 3: The present and future earning capacities of both parties. DRL 236 B(6)(a)(3)
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 4: The ability of the party seeking maintenance to become self supporting. DRL 236 B(6)(a)(4)
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 5: Whether there is a reduced or lost earning capacity of the party seeking maintenance which resulted from forgoing or delaying training or employment during the marriage. DRL 236 B(6)(a)(5)
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 6: The presence of children of the marriage in the respective homes of the parties. DRL 236 B(6)(a)(6)
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 7: Tax consequences to the parties. DRL 236 B(6)(a)(7)
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 8: Contributions and services of the party seeking maintenance. DRL 236 B(6)(a)(8)
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 9: Wasteful dissipation of marital assets by either party. DRL 236 B(6)(a)(9)
Wasteful dissipation of marital assets by a spouse may be offset by awarding the other spouse an award of maintenance.
Factor 10: Transfers made in contemplation of a matrimonial action at below market value. DRL 236 B(6)(a)(10)
Transfers made in contemplation of a divorce case for less than fair market value can be offset by an award of maintenance.
Factor 11: Any other factor the court determines as relevant. DRL 236 B(6)(a)(11)
A "catch all" factor, the court may consider anything else it deems relevant.
The article "Actions Commenced Prior to October 12, 2010, The Eleven Factors For Determining Spousal Maintenance in New York" 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 (516) 742-2600. For more articles and information, please visit www.jdbar.com.
Copyright © 1998-2011 by J. Douglas Barics, attorney-at-law. All rights reserved.
J. Douglas Barics, Esq. – Divorce, family, matrimonial lawyer in Long Island, New York.
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