By: Rena C. Dawson, Esq.
Before filing for divorce or deciding to separate from your spouse, the most commonly asked question is: AWill I have to pay my spouse alimony?@
Alimony is called spousal maintenance or spousal support in New York. The question of whether one spouse will have to pay the other spouse alimony and how much that award will be will depend on a number of factors. How much money does each spouse earn and what is the earning capacity of each spouse? Another factor is whether one spouse was the homemaker and did not work outside of the home or whether one spouse can support him or herself while still contributing to the living expenses of their former spouse.
Spousal maintenance must be requested by the spouse before the court will agree to grant that request. Unlike other states, the primary function of spousal maintenance in New York is to support the spouse until they can achieve independence from the paying spouse. Spousal maintenance awarded after a judgment of divorce is also known as rehabilitative maintenance awarded to allow a spouse to achieve financial independence and a specific dollar amount will be awarded for a specific duration of time. In the rare case where a spouse cannot become financially independent, the court may award lifetime maintenance, that is a specific dollar amount for the life of the paying spouse. As child support and spousal support obligations usually terminate upon the death of the paying spouse, the spouse who receives the support should obtain a life insurance policy insuring the life of the paying spouse and paying the recipient of the support upon the death of the paying spouse.
Like child support, there is a set formula to calculate temporary spousal support (support while the divorce action is pending), but there is no post divorce judgment formula. As of October 12, 2010, New York has enacted temporary spousal support guidelines that determine the amount of support based upon a formula using a percentage of each spouse=s income. The formula provides that temporary maintenance should be the lesser of either: 1) Thirty percent of the higher-earning spouse=s income, minus 20 percent of the lower-earning spouse=s income, or 2) Forty percent of their combined income, minus the lower-earning spouse=s income.
For example, if the payor=s [spouse making more money] annual income is $90,000 and the payees= [spouse making less or no income] annual income is $50,000, the first calculation would be: $27,000 (30 percent of $90,000) minus $10,000 (20 percent of $50,000) equals $17,000 per year; the second calculation would be: $56,000 (40 percent of $140,000 [$90,000 plus $50,000 combined spousal income]) minus $50,000 equals $6,000 per year. In this example, the amount of Aalimony@ or temporary spousal maintenance that the monied spouse would have to pay to the less monied spouse would be $6,000 per year or $500 per month which is the lower of the results from the two calculations. Fortunately, the rule that the lower result prevails limits the amount of temporary maintenance that a spouse needs to bring the payee=s income up to 40 percent of the parties= total income. This is a significant redistribution of income between parties and should be reviewed carefully.
Before filing for divorce or separating from your spouse you should consult an attorney to calculate your temporary spousal support obligation based on your income and your spouse=s income. There is a presumption that the non monied spouse, or unemployed spouse, is entitled to be financially supported by the monied spouse, or working spouse, while the divorce case is pending until there is either a settlement between the parties or a judge makes a final determination.
To determine whether a spouse is qualified to receive financial support from the other, the court will examinethe current and projected finances of each spouse. The court will consider the standard of living of the family during the marriage, the earnings and salary of each party, the assets of each spouse, and the amount each spouse actually needs for living expenses.
Specifically, in awarding spousal maintenance, the judge will consider nineteen specific factors cited in the statute:
- the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
- the length of the marriage;
- the age and health of both parties;
- the present and future earning capacity of both parties;
- the need of one party to incur education or training expenses;
- the existence and duration of a pre-marital joint household or a pre-divorce separate household;
- 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;
- the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefore;
- 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;
- the presence of children of the marriage in the respective homes of the parties;
- 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;
- the inability of one party to obtain meaningful employment due to age or absence from the workforce;
- the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
- the tax consequences to each party;
- the equitable distribution of marital property;
- 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;
- the wasteful dissipation of marital property by either spouse;
- the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
- the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
- any other factor which the court shall expressly find to be just and proper.
Spousal maintenance is not awarded by the court in every divorce or separation case. If spousal maintenance, for example, is waived in a pre-nuptial agreement, the court cannot automatically award maintenance unless that pre-nuptial agreement is vacated or set aside.
The statute sets forth a formula for determining interim assistance while a divorce case is pending and sets forth factors by which a court can deviate from those interim maintenance guidelines. You should consult a lawyer about the calculation of interim maintenance before signing any agreements.
Rena Dawson, Esq., is the Head the Matrimonial Practice at Isaacs, Devasia, Castro & Wien LLP. For more information on this topic you can contact her at 917.551.1315 or at rdawson@idcwlaw.com