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4 2021 Decisions that Impact Maintenance you MUST know

  • Father’s Medical Disability Alone Insufficient to Demonstrate Extreme Hardship:

Ryan v. Ryan, (Fourth Dept.)(2021 WL 3782796)(Aug 26, 2021): Denying father’s application to terminate maintenance due to medical disability and found that father had ability to meet child support and maintenance duties. Father as moving party had a duty to establish extreme hardship.

  • Separate Income for Distribution is Still Included for Maintenance Calculation:

Iannazzo v. Iannazzo, (Fourth Dept.)(2021 WL 3782924)(Aug 26, 2021): Though court properly determined military pension was separate property and not subject to distribution, that pension should have been included as income for purposes of post-divorce maintenance.

  • When Payor Earns More Than Maintenance Cap, Court Must Look to the Factors:

Mahoney v. Mahoney, (Second Dept. 2021)(2021 WL 3641338)(Aug 18, 2021): Where, as here, payor’s annual income exceeds statutory income cap of $184,000, court shall determine guideline amount by performing calculations set forth in DRL § 236, then determine whether to award additional maintenance for income exceeding the cap by considering factors set forth in DRL § 236 and setting forth the factors considered. Overriding purpose is to give spouse economic independence for a duration that would provide recipient with enough time to become self-supporting. Amount and duration is decided by trial court and every case must be determined on its unique facts. Here, considering factors, such as age and health, present and future earning capacity, termination of child support before termination of maintenance, and standard of living during marriage, maintenance award was a provident exercise of discretion.

  • Imputing Income Requires Basis in Law or in Fact:

Weiss v. Nelson, 196 A.D.3d 722, (Second Dept.)(2021 WL 3177791)(Jul 28, 2021): Supreme Court erred in awarding wife in 28-year marriage only $1,500 per month until age 62. Husband was primary earner throughout marriage earning well over $200,000 annually when action began, while wife had not earned any significant income upon returning to work having been a stay at home mother with their 3 children for almost 10 years. Court erroneously imputed $80,000 per year to wife, though she never earned more than $19.00 per hour upon her return to work. The calculation of imputing a party’s earning potential must have some basis in law and fact. Here, there was no evidence wife’s past income or demonstrated future earning potential amounted to $80,000 annually, the court should have imputed an annual income of $35,000. Weighing maintenance factors, award of taxable maintenance of $3,500 monthly until earliest of wife’s eligibility for Social Security benefits, remarriage, or death of either party is appropriate.

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    Rubinstein Law Firm

    The Rubinstein Law Firm proudly serves all of New York for divorce and other state matters and the whole country on intellectual property related matters.


    • What kind of cases do you handle?
    • Family Law Cases such as:

      – Divorce- both contested and uncontested, same sex and gray divorce

      – Custody

      – Support

      – Alimony/ Maintenance

      – Equitable Distribution

    • Intellectual Property cases such as:

      – Patents

      – Copyrights

      – Trademarks, Service Marks and Trade Dress

      – Data Privacy

      – Transactional work such as: Terms and Conditions, IP registration and enforcements and cease and desists

      – Any other IP related matter.

    • How much will my matter cost?
      • Our firm has a different philosophy than virtually any other, we try to close cases quickly. We recognize if you are happy, you will refer us clients. In most matters, it will depend on how complicated the facts and/or legal issues are and how willing the parties are to settle.
    • How does your firm have two differing specialties?
      • We spend a lot of money, time and resources to remain experts in our respective fields. Join the parties and opposing counsels who are baffled by our expertise in both areas.

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