New York Alimony Lawyers, NY Alimony Attorneys, NYC Spousal Support Lawyer

New York City Alimony Attorney

Spousal Support and Post Divorce Maintenance

2015 Legislative Changes in Matrimonial and Family Law in New York State.

Maintenance, also known as alimony or spousal support, in a divorce proceeding, is defined in Domestic Relations Law §236. The statue provides the methodology for determining temporary maintenance while a divorce is pending, as well as permanent maintenance post- divorce.

There are two computational methods that are used. The first computational method is applied to cases in which there is a child of the marriage and the maintenance payor is not the custodial parent pursuant to the Child Support Standards Act (CSSA). The second computational method is applied to those cases where child support will not be paid, or where child support will be paid by the spouse receiving maintenance.

Computational Method #1, where the maintenance payor is not the custodial parent, is as follows:

  • Calculation A: The Court will subtract twenty-five percent (25%) of the payee's income from twenty percent (20%) of the payor's income.
  • Calculation B: The Court will then multiply the sum of the payor's income and the payee's income by forty percent (40%).
  • The Court will then subtract the payee's income from Calculation B.
  • The Court will determine the lower of the two amounts derived from Calculation A and Calculation B.
  • The guideline amount of maintenance shall be the amount determined by whichever calculation is lower, except that if that amount is less than or equal to zero, the guideline amount of temporary maintenance shall be zero dollars.
  • Maintenance shall be calculated prior to child support because the amounts of temporary maintenance shall be subtracted from the payor's income and added to the payee's income as part of the calculation of the child support obligation.

Computational Method #2, where there is no child support or the maintenance payor is the custodial parent, is as follows:

  • Calculation A: The Court is to subtract twenty percent (20%) of the payee's income from thirty percent (30%) of the payor's income.
  • Calculation B: The Court will then multiply the sum of the payor's income and the payee's income by forty percent (40%).
  • The Court will then subtract the payee's income from the amount derived from Calculation B.
  • The Court will then determine the lower of the two amounts derived from Calculation A and Calculation B.
  • The guideline amount of temporary maintenance shall be the amount determined by whichever calculation is lower, except that if that amount is less than or equal to zero, the guideline amount of temporary maintenance shall be zero dollars.
  • If child support will be paid for the children of the marriage, but the payor is the custodial parent as defined by the Child Support Standards Act, temporary maintenance shall be calculated prior to child support because the amount of temporary maintenance shall be subtracted from the payor's income and added to the payee's income as part of the child support obligation calculation.

Computational Method #1 Simplified, where the maintenance payor also pays child support, is as follows:

  • Calculation A: The Court will subtract twenty-five (25%) percent of the maintenance payee's income from twenty percent (20%) of the maintenance payor's income.
  • Calculation B: The Court will then multiply the sum of the maintenance payor's income and the maintenance payee's income by forty percent (40%), and subtract the maintenance payee's income from the result.
  • The Court is to use the lower of the two calculation amounts as the guideline amount of maintenance.

Computational Method #2 Simplified, where child support will not be paid or the maintenance payor is also the custodial parent, is as follows:

  • Calculation A: The Court will subtract twenty percent (20%) of the maintenance payee's income from thirty percent (30%) of the maintenance payor's income.
  • Calculation B: The Court will then multiply the sum of the maintenance payor's income and the maintenance payee's income by forty percent (40%), and subtract the maintenance payee's income from the result.
  • The Court is to use the lower of the two calculation amounts as the guideline amount of maintenance.

The formula above only applies to the first $175,000 of the payor's income. For income that exceeds the cap of $175,000, the amount of additional maintenance, if any, is within the court's discretion, and must take into account the following statutory factors:

  • The age and health of the parties;
  • The present or future earning capacity of the parties, including a history of participation in the workforce;
  • The need of one party to incur education or training expenses;
  • The termination of a child support award during the pendency of the temporary maintenance award;
  • The wasteful dissipation of martial property, including transfers made in contemplation of a matrimonial action (divorce planning);
  • The existence and duration of preā€marital joint household or a pre-divorce separate household;
  • Acts by one party against another that have impacted on the party's earning capacity, including but not limited to acts of domestic violence;
  • The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or inlaws provided during the marriage the inhibits a party's earning capacity;
  • The tax consequences to each party;
  • The standard of living of the parties established during the marriage;
  • The reduced or lost earning capacity of the spouse receiving maintenance because of delaying education, training, and missed employment or career opportunities during the marriage;
  • The equitable distribution (property division) of marital property and income/imputed income on assets to be distributed (this factor applies for permanent maintenance only);
  • The contribution and services of the payee as spouse, parent, wage earner, homemaker, and career of the other spouse; and
  • Any other factor which the court shall expressly find to be just and proper.

New York State Courts may also deviate from the use of the formula for income under $175,000 using the factors above.

The Self-Support Reserve: it should be noted that if the payor's income is below the Self-Support Reserve, there is a rebuttable presumption that temporary maintenance is to be awarded.

In determining the duration of permanent maintenance post-divorce, Domestic Relations Law § 236(B)(6)(f) provides an advisory schedule, which is as follows:

  • From 0 to 15 years of marriage = 15% to 30% of the length of the marriage;
  • Between 15 years and 20 years of marriage = 30% to 40% of the length of the marriage;
  • 20 years of marriage or more = 35% to 50% of the length of the marriage.

Signup For Newsletter


Sherri Donovan & Associates, P.C.
Counselor-At-Law
305 Broadway, Suite 555
New York, N.Y. 10007

sherri@sherridonovan.com
212-431-9076
(917) 723-1163



Contact Form




Hit Him Where It Hurts: The Take-No-Prisoners Guide to Divorce, Alimony, Custody, Child Support, and More.