13 Reasons Why Maintenance Is Divided
Unfortunately, after divorce it is not the end of your relationship with your ex-spouse. There is still much that must be worked out. One such example is what is commonly known as maintenance and in legal terms we call it maintenance.
The purpose of maintenance “is to provide a spouse with the opportunity to become economically independent“.[1] Consideration of the predivorce standard of living is an essential component of evaluating and properly determining the duration and amount of the maintenance award.”[2]. Also, in Hartog, the pre-separation of living effectively trumps any of the specifically enumerated factors and also impacts upon the force of those factors in rendering a maintenance determination.
Factors Judges Consider
In any matrimonial action the court may order maintenance as the judge sees fit considering:
- the standard of living of the parties during the marriage;
- whether receiving party lacks sufficient means to provide for their reasonable needs;
- whether other has sufficient means to cover the reasonable needs of the other; and
- the circumstances of the case and of the respective parties.
The judge will also consider the following:
- the resources of the respective parties including marital property distributed;
- marriage length including existence/duration of a pre-marital joint household;
- age and health of both parties;
- present and future earning capacity of both parties including tax consequences;
- the need of one party to incur education or training expenses;
- loss of health insurance upon dissolution, and availability and cost of medical insurance;
- Acts, such as domestic violence, that have hurt one party’s chance to make money or reduced or earning capacity of the maintenance seeker due to delayed education or employment and services and contributions of maintenance seeker as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
- the ability of the maintenance seeker to become self-supporting, time and training necessary;
- transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; wasteful dissipation of marital property by either spouse;
- children’s presence in respective homes of the parties; including care of children or stepchildren, if such children have disabilities, elderly parents that inhibits earning capacity;
- need for exceptional additional expenses for the children, like, school and health;
- inability of party to obtain employment due to age or absence from the workforce; and
- any other factor which the court shall expressly find to be just and proper.
Closer Look at Factors
(1) Factoring of Equitable Distribution
Equitable distribution can shake a more classic approach to maintenance. For example, in Ostrower, though courts often try to stick to maintenance formula, where wife had significant assets on account of what she received when property was divided, the court ordered a reduction of maintenance.[3]
(3) Age and Health of Both Parties
So a party’s age and earning potential too can make a big difference. Here, the plaintiff was 46 years old at the time of trial and the parties were married for nearly 22 years. The plaintiff did not work outside the home for the entire marriage, having left her secretarial job to raise the parties’ three children. Under the circumstances of this case, the Supreme Court’s award of maintenance to the plaintiff was insufficient and therefore should be modified.[4]
(4) Earning Capacity
More than one client has asked me over the years, well I am making $180,000 a year now. Should I quit? Does it make sense to consider a lower paying job? While actual earnings is the first place judges tend to look, they may also quasi-penalize those either trying to game the system or being lazy.
For example, if someone has a medical degree, it’s difficult to imagine a judge setting her income at $30,000 a year, just because now she is a receptionist. The Second Department once imputed income of $150,000 to a part based on their pasting earning and degree.[5]
The Family Court of limited jurisdiction has concurrent powers to determine spousal maintenance, child support and child custody
How do I calculate the number?
Of course, parties want a handle on what they will be providing or receiving. Though it is never simple to provide a solid answer with precision, the Supreme Court System in New York did create this calculator that I found to be really helpful.
What Role Do Prenuptial Agreements Play?
Yes, parties can contract prior to the marriage where maintenance would be waived or set in certain terms. In fact, couples can even have postnuptial agreements to decide such matters. However, agreements can be challenged in relation to maintenance if not “fair and reasonable” at the time the agreement was made or if “unconscionable” when the final judgment of divorce is entered.[6]
Similarly, where factual issues existed regarding whether wife’s waiver of maintenance in prenuptial agreement would be unconscionable based on circumstances at the time of the divorce action, including whether wife would become public charge without spousal support and whether waiver of all spousal support would result in inequality so strong and manifest as to shock the conscience and confound the judgment of any person of common sense, precluding summary judgment for wife declaring prenuptial agreement void.[7]
Most Importantly, How Much Money We Talkin’?
So let’s consider an instance qhere the maintenance payor is also paying child support, then maintenance is determined by: (a) subtracting 25% of the payee’s income from 20% of the payor’s income; (b) multiplying the sum of the payor’s income and the payee’s income by 40% and then subtracting the payee’s income from the result obtained by multiplication. The lower of the two thus calculated figures is the guidelines maintenance amount.
For example, assume that plaintiff is the maintenance payee and is paying child support, the plaintiff’s income is $100,000 per year and the defendant’s income is $40,000 per year. Under the first calculation, 25% of the payee’s income is $10,000, 20% of the payor’s income is $20,000, and subtracting $10,000 from $20,000 would put the result of the first calculation at $10,000. Under the second calculation, 40% of the combined income is $56,000 (40% of 140,000) and subtracting that by the payee’s income of $40,000, leaves $16,000, which then is the result of the second calculation. Since the lower of the two calculations in this illustration is the first calculation, it is that one which would be used, placing the amount of maintenance at $10,000 per year.
Where the maintenance payee is not paying child support, maintenance is determined by: (a) subtracting 20% of the maintenance payee’s income from 30% of the maintenance payor’s income; (b) multiplying the sum of the payor’s income and the payee’s income by 40% and then subtracting the payee’s income from the result obtained by multiplication. The lower of the two thus calculated figures is the guidelines maintenance amount.
Assume again, plaintiff is the maintenance payee but is not paying child support, the plaintiff’s income is $100,000 per year and the defendant’s income is $40,000 per year. Under the first calculation, 20% of the payee’s income is $8,000, 30% of the payor’s income is $30,000, and subtracting $8,000 from $30,000 would put the result of the first calculation at $22,000. Under the second calculation, 40% of the combined income is $56,000 (40% of $140,000) and subtracting that by the payee’s income of $40,000, leaves $16,000, which then is the result of the second calculation. Since the lower of the two calculations in this illustration is the second calculation, it is that one which would be used, placing the amount of maintenance at $16,000 per year.
In the event that the calculations result in an amount that is zero or a negative number, then the amount of maintenance would be zero. For example, assume that there are no children, that the plaintiff’s income is $40,000 per year and the defendant’s income is $35,000 per year. Under the first calculation, 20% of the payee’s income is $7,000, 30% of the payor’s income is $12,000, and subtracting $7,000 from $12,000 would leave $5,000. Under the second calculation, 40% of the combined income is $30,000 (40% of $75,000) and subtracting that by the payee’s income of $35,000 would yield a negative ($-5,000). Since the lower of the two calculations results in a negative, no maintenance would be paid.
There is also a rebuttable presumption that no maintenance is payable in the event that the payor’s income is below the self-support reserve. And if the guidelines payment would put the payor’s income below the self-support reserve, maintenance would be set at the difference between the payor’s income and the self-support reserve.
Where both maintenance and child support are to be calculated, maintenance is to be calculated first since the amount of maintenance is to be subtracted from the payor’s income and added to the payee’s income for child support purposes.
The statute provides for what income is to be used in performing these calculations. The starting point is the income used for child support purposes, but without subtraction for alimony or maintenance paid, or to be paid, to the other party to the action. Thus, while maintenance is to deducted from income for child support standards purposes, it is not deducted for determining what the maintenance should be. Moreover, it is apparent that child support payable for the benefit of the children who are the subject of the action. Again, for child support calculations purposes, maintenance payable to a prior spouse and child support payable to prior child would be deductions from income. Income as would be calculated for child support purposes is the starting point for maintenance purposes as well even if there are no children.
Income from income-producing property which is distributed or to be distributed in equitable distribution is to be considered income for maintenance purposes. This aspect of the statute may prove problematic. The child support standards conception of income includes income from income-producing property. Thus, the specific reference to adding this form of income to income for maintenance purposes could seem to be redundant. On the other hand, it may be that the intent was to authorize the court to shift the income from the titled spouse to the non-titled spouse in the event the property is distributed to the non-titled spouse. Likewise, if the income-producing property is jointly owned and it is distributed to one of the spouses, income-shifting may be authorized in that circumstance as well.
Where the payor’s income is equal to or less than $175,000 per year, the statutory guidelines are to be followed, unless the court finds that the guidelines amount is unjust or or inappropriate. The $175,000 per year figure is to be adjusted every two years, starting January 31, 2016, by an increase for the average annual percentage change in the Consumer Price Index for All Urban Consumers as published by the United States Department of Labor. This adjustment is done by the Office of Court Administration.
Where the payor’s income exceeds the income cap, the court is to perform the required calculations based on the payor’s income up to the cap and then decide whether to award additional maintenance.
The court is also given the authority to consider an advisory schedule in deciding the duration of maintenance. The schedule suggests that maintenance be payable for a percentage of the time that the parties were married, that is, the schedule ties the length of maintenance payments to the length of the marriage The schedule may be considered whether the payor’s income is under or over the income cap. However, the schedule is advisory only; there is no presumption that the schedule should be used and, in any event, the schedule is not precise. The schedule is as follows:
| Length of Marriage | Percentage of Length For Which Maintenance Payable |
| 0 to 15 years | 15% to 30% |
| 15 years to 20 years | 30% to 40 |
| More than 20 years | 35% to 50% |
Length of marriage is defined as the time between the date of the marriage and the date of the commencement of the matrimonial action.
To illustrate, if the parties were married for 10 years, the guideline would advise that maintenance be payable for 1.5 to 3 years duration.
Under the advisory schedule, the presence of children of the marriage makes no difference. However, the court may, in deciding the duration of maintenance, disregard the schedule entirely or give it consideration, but whatever it does the court may consider a number of factors, including whether a spouse’s care of children inhibited her or his earning capacity. But, in addition, the court is mandated to consider anticipated retirement assets, benefits, and retirement eligibility age of the parties, if ascertainable, in deciding the duration of maintenance payments. Indeed, the actual full or partial retirement of the payor with substantial diminution of income is a basis for modification, provided that this was not ascertainable at the time of the original maintenance decision.
That the court specifies a period of time during which maintenance is to be paid does not operate to extend the duration of payments beyond the deaths of the parties or the remarriage of the payee. Nor is the court precluded from modifying the period later on.
[1] Van Dyke v. Van Dyke, 273 A.D.2d 589 (Third Dept. 2000).
[2] Hartog v. Hartog, 85 N.Y.2d 36 (1995)
[3] Ostrower v. Ostrower, 148 A.D.3d 819, (Second Dept. 2017)
[4] Papakonstantis v Papakonstantis, 163 AD3d 839, 841 [2d Dept 2018]
[5] Brendle v. Roberts–Brendle, 169 A.D.3d 752, (Second Dept. 2019)
[6] Taha v Elzemity, 157 A.D.3d 744, 745-46, (2d Dep’t 2018)
[7] Barocas v. Barocas, 94 A.D.3d 551, 942 N.Y.S.2d 491,
