Alimony, or spousal support, refers to payments that are made to one spouse from the other after a divorce. The family court considers situations in which the spouses have unequal earning power and have been married for a specified amount of time. A judge also assesses one spouse’s financial need against whether the other spouse has the ability to pay alimony. Overall, the purpose of alimony is to equalize the financial resources of a divorcing couple.
However, it is important to note that spousal support or alimony is not automatic, and it is not ordered in every divorce. In some cases, the judge may award temporary alimony while the divorce is pending.
Alimony is payments made from one spouse to another after a divorce to support the spouse. However, child support is made for the child in the marriage in order to sustain their daily essential needs.
When determining the amount of maintenance of alimony payments, a judge will consider all of the relevant factors in the specific situation being presented in court, including but not limited to:
- The ability for a spouse to support themself;
- The necessary time for the spouse to acquire a job or get training in order to become employed;
- The standard of living that was established during the time of marriage;
- The overall length of the marriage;
- The circumstances that led to the separation.
- Importantly, if there is evidence of domestic abuse, that typically is evidence that is used to support spousal maintenance payments;
- Each party’s age;
- The physical and mental condition of each party;
- The ability of the spouse paying alimony to support themselves while making payments; and
- Other financial responsibilities and resources of each party, such as:
- Previous awards of child support;
- Other financial obligations of each party,
- The rights of each party to receive retirement benefits; and
- Taxability or non-taxability of income.
Alimony in NY may either be paid in one lump sum or on either a temporary or permanent basis. The court will generally consider the circumstances of each party when determining how much alimony is to be ordered and for how long the alimony order will remain.
In New York, there are two types of alimony: temporary spousal maintenance and post-divorce spousal maintenance. Temporary maintenance is the term that refers to the alimony that is paid while a divorce is ongoing. However,, post-divorce maintenance refers to the alimony that is ordered by the final judgment that is to be paid from one party to another party after the divorce. Post-divorce maintenance may either be temporary or permanent in nature.
How Do I Qualify for Alimony?
Whether or not a spouse can receive maintenance in New York depends greatly on their financial status and their need for financial support. New York courts will look at all the circumstances, and factors stated above when determining whether or not an individual qualifies for alimony.
Typically, an individual will qualify for alimony if there is an imbalance in the financial situations of the two parties. For example, one party quits their job to support the other party and take care of the home or children.
This is especially true in cases in which an individual is seeking temporary alimony, which is only intended to provide support while the couple is going through the divorce process. An individual who is not employed will typically be able to receive temporary alimony throughout the divorce process while evidence is gathered to determine whether or not post-divorce maintenance will be necessary.
A spouse may also qualify for maintenance if they and their spouse have already agreed that one spouse should receive maintenance. For example, the spouses may participate in an alternative form of dispute resolution, such as mediation. They may reach an agreement for one spouse to pay the other spouse a specified amount of alimony for a certain duration in a mediated settlement agreement.
It is important to note that any agreement made between the two parties must be in writing in order to be enforceable.
How Much Alimony Can I Receive?
The amount of maintenance that a spouse may receive will primarily depend on how much the other spouse earns and whether or not they will also be receiving child support from their spouse.
The New York statute for spousal maintenance was recently modified in March 2022. In New York, there are two different ways to calculate spousal maintenance:
- Spousal Maintenance with Children: When calculating spousal maintenance with children, the formula for determining alimony will be the lesser of the following two calculations:
- 20% of the Payor’s Income minus 25% of the Payee’s Income; or
- 40% of both of the parties combined income.
- Spousal Maintenance without Children: When calculating spousal maintenance without children, the formula for determining alimony will be the lesser of the following two calculations:
- 30% of the Payor’s Income minus 20% of Payee’s Income; or
- 40% of both of the parties combined income.
New York law also imposes an income cap on the maximum income that may be considered. An income cap means the maximum amount of net income that may be considered is income up to a specified amount. All other income after that will not be considered in determining alimony. The income cap in NY was recently raised to $203,000 as of March 1, 2022. This income cap is subject to change every 2 years.
Once again, the court is required to follow the applicable formula in order to determine the base amount of maintenance. However, the court also has wide discretion to award an additional amount of maintenance if the paying spouse has an income above the previously mentioned cap amount. Typically, payments above the maximum amount will be awarded if there is evidence that supports a certain lifestyle.
How Long Does Alimony Last?
As mentioned above, alimony in New York will depend on the specific circumstances of each individual case. In New York, the length of alimony is typically based on the length of the marriage between the two parties. In fact, New York recently reformed many aspects of its NYS alimony laws, including rules that altered the previous laws on permanent alimony.
The new law created an advisory schedule for the duration of permanent alimony based on the length of the marriage:
- For marriages in New York that lasted 0 to 15 years, alimony may last anywhere from 15 percent to 30 percent of the marriage’s length;
- For marriages in New York that lasted more than 15 years up to and including 20 years, the alimony award may last anywhere from 30 to 40 percent of the marriage’s length; and
- For marriages in New York that lasted more than 20 years, alimony may last anywhere from 35 to 50 percent of the marriage’s length.
Importantly, the local court is not required to follow the advisory schedule and may consider other factors, such as those listed above. However, a judge who declines to use the schedule must present a written decision citing the factors that they considered when determining the alimony award and the length of the alimony award.
It is important to note that alimony of any duration will terminate upon the passing of one of the spouses. The new law in New York does favor short terms of spousal maintenance and recommends a maximum of 10 years of maintenance for longer marriages. However, the court may still award lifetime alimony if the court deems it appropriate.
It is important not to attempt to avoid alimony in New York. Doing so will result in an enforcement action being brought against you, as well as contempt actions also being brought against you.
How Can I Petition for Alimony?
In order to petition for spousal maintenance in NY, even if the maintenance is temporary, the individual requesting alimony will be required to begin divorce proceedings. This means that the individual seeking alimony will be required to file a Summons with Notice or a Summons with a Verified Complaint.
Regardless of which of these documents the individual chooses to file, the petitioning party will need to include a request for maintenance in the Ancillary or Other Relief section of the documents. Then, once the individual has filed the appropriate initial divorce documents, they will be required to serve them on the other spouse, along with a Notice of Guideline Maintenance.
After the petitioning individual has served divorce paperwork on their spouse, they will then be required to complete an Annual Income Worksheet and a Maintenance Guidelines Worksheet. This is to show the court their current financial status and the reasons that they need maintenance payments. These worksheets will also be used by the court to calculate the amount of maintenance that will be ordered.
If an individual makes a mistake on any of the above paperwork, they may not receive any alimony payments. Because of this, if you are attempting to request spousal maintenance, it is often essential to consult with an attorney who can advise you of your best course of legal action. An attorney can also assist with completing alimony paperwork in order to avoid any mistakes while petitioning for maintenance.
Where Can I Find the Right Lawyer?
As noted above, it is recommended to consult with an experienced New York alimony lawyer when petitioning for maintenance in order to avoid any potential mistakes. Obtaining maintenance, especially temporary maintenance, during a separation is often the difference between continuing to live as you did during your marriage or struggling to survive paycheck to paycheck.
As such, it is essential to file a petition for maintenance that is free from mistakes in order to begin receiving spousal maintenance to take care of your life needs. An experienced New York family law attorney will be able to ensure that you receive proper spousal maintenance payments and can assist you in petitioning for divorce and maintenance. They can also represent your interests in court, as necessary.
