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Spousal MaintenanceHow is Maintenance Calculated in New York: A Look at the Statutory Factors

January 9, 2013

Planen und finanzierenUPDATE:   This blog post addresses the calculation of maintence in cases commenced before January 25, 2016.  

For cases filed after January 25, 2016, read this blog post


At the same tine no fault divorce came to New York, the laws regarding maintenance or alimony as is known elsewhere were changed.

New York Courts were empowered to award temporary maintenance by way of a troublesome and formulistic calculation (discussed here).

Maintenance to be paid after a divorce is now determined by consideration by an expanded list factors instead the type mathematical formula used to award temporary maintenance.    The twenty statutory factors to be considered are:

 (1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;

 (2) the length of the marriage;

 (3) the age and health of both parties;

 (4) the present and future earning capacity of both parties;

 (5) the need of one party to incur education or training expenses;

 (6) the existence and duration of a pre-marital joint household or a pre-divorce separate household;

 (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;

 (8) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;

 (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;

 (10) the presence of children of the marriage in the respective homes of the parties;

 (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;

 (12) the inability of one party to obtain meaningful employment due to age or absence from the workforce;

 (13) the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;

 (14) the tax consequences to each party;

 (15) the equitable distribution of marital property;

 (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;

 (17) the wasteful dissipation of marital property by either spouse;

 (18) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

 (19) the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and

 (20) any other factor which the court shall expressly find to be just  and proper.

While many of these factors were long recognized, some are new. Among the more interesting is #5-the need of one party to incur education and training expenses.   What makes this interesting is that the education is not in any way linked to the party’s ability to become self-supporting.   The award could be justified on a need to be educated.

Also, new is # 6-the existence and duration of a pre-marital joint household or a pre-divorce separate household.    In most cases, and particularly in the case of long term marriages, the pre-marital standard of living pre-marriage is not an issue.  But now, especially where the parties have cohabitated for a number of years before a short marriage, their pre-martial cohabitation could potentially lead to a higher maintenance award.

Factor 11 of the new law allows for the first time, consideration of the need of a party to care for elderly parents or in-laws. In addition, by making the care of disabled adult children a factor, the law, in effect, extends child support for disabled children beyond the age of 21.

I will continue to follow cases applying the statutory factors to maintenance awards and report about them here.


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