Spousal Support

New York Spousal Support

New York spousal support or maintenance (formerly known as "alimony"), are payments made by one spouse to the other, pursuant to either a written agreement between the parties, or by court order. These payments are deductible to the payor for tax purposes, and includable as income to the recipient. Furthermore, such payments may terminate upon the recipient spouse's remarriage, death of either party, cohabitation by the recipient, if agreed by the parties in the agreement or the holding out by the recipient and another as husband and wife.

The most common issues arising in connection with New York spousal support payments include:

• What sum, if any, should be paid;

• How often should such payments be made (i.e. once per week, bi-weekly, once per month);

• For what period of time should such payments be made (i.e. one year, four years, lifetime); and

• Should such payments continue if the recipient spouse cohabits with an unrelated member of the opposite gender for a certain period of time.

To answer these questions, New York domestic relations law requires consideration of the following statutory factors:

1. the income and property of the respective spouses including marital property distributed pursuant to subdivision five of this part;

2. the duration of the marriage and the age and health of both spouses;

3. the present and future earning capacity of both spouses;

4. the capacity of the spouse seeking spousal support or maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;

5. 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;

6. the presence of children of the marriage in the respective homes of the parties;

7. the tax consequences to each party;

8. 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;

9. the wasteful dissipation of marital property by either spouse;

10. any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

11. the loss of health insurance benefits upon dissolution of the marriage; and

12. any other factor which the court shall expressly find to be just and proper.

In addition, the standard of living enjoyed by the parties during the marriage plays a significant role.

Unlike child support, there is no standardized formula to calculate the appropriate amount and duration of spousal support or maintenance in New York. Spousal support determinations are made on a case-by-case bases and are fact sensitive. That said, spousal support is often viewed as "rehabilitative" in nature, which means that spousal support awards are crafted in such manner as affords a recipient spouse the opportunity to acquire and develop educational or occupational skills sufficient to achieve financial independence. Once that period lapses, spousal support terminates. That said, in certain instances, upon a showing that age, health or other factors preclude eventual self-sufficiency of the recipient spouse or an inability to maintain the pre-divorce standard of living, permanent or life-time spousal support or maintenance may be granted.

For example, a person in the mid-fifties or older who had never worked, or only worked part-time with limited income-generating ability may be a candidate for lifetime maintenance. An infirm person, a disabled person, or someone who is not able to generate enough income to become self-supporting may be a candidate for lifetime maintenance.

Where the disparity in the income is great between the two spouses (for example, where one spouse has an earning history of one hundred thousand dollars and another spouse has an earning history of fifteen thousand dollars), a long term award, and possible a permanent award, might be warranted in view of the probability that the lesser income earning person would not be able to generate an amount of money which would enable that person to enjoy a standard of living that was enjoyed during the marriage.

Temporary Maintenance While a Case is pending

While the case is pending and before final judgment, or execution of an agreement, there may be a need for one spouse to request temporary or pendente lite maintenance from the court. This type of maintenance is awarded while the case is pending, to enable one spouse to sustain him or herself during the course of the action.

The amount of the pendente lite award is not necessarily the same amount as the permanent award. Most pendente lite orders are awarded based on affidavits submitted o the courts, and not after a trail or a hearing where the parties have an opportunity to testify and are subject to cross examination. Accordingly the pendente lite award may be adjusted either upwards or downward at the time of the entry of the final judgment of divorce.

In cases where one party may attempt to deceive the court or actually lie in an affidavit attesting that income is far less than the income actually provable at trial, the court has the authority to award the full amount of maintenance ascertained after the trial retroactive to the date of the application for maintenance.

Maintenance Distinguished from Child Support

Maintenance is money paid by one spouse to the other spouse for the support of that spouse. It is distinguished from child support which is money paid by one spouse to another spouse for support for the children.

When the person receiving maintenance remarries, or the support terminates by the terms of the agreement or court order, maintenance will terminate but child support will continue until the children are emancipated.

Health and Life Insurance

It may be proper in some cases to provide that the spouse who has an obligation to pay maintenance should maintain a life insurance policy for a period to correspond to the time during which maintenance is being paid and/ or a distributive award is being paid. The underlying principle of course is that in the event of the death or disability of the payor spouse, a fund would be available to compensate the other spouse for loss of income and/or benefits from the payor spouse.

In many situations the receiving spouse may not have a job or might not have a job that entitles such spouse to medical benefits. The payor spouse, who presumably is employed, would have the opportunity through Federal law, commonly referred to as COBRA, to secure medical insurance for up to thirty six months through the employer-sponsored health insurance policy for the benefit of his/her spouse.

The obligation to maintain medical insurance and/or life insurance generally terminates upon the payor spouse’s fulfillment of the maintenance and/or distributive award obligation.

Where a spouse is unable to secure life insurance because of physical condition or age, other means should be found, if possible, to secure the obligation, i.e. - mortgage on property owned by the payor spouse.

Tax Considerations

Payments of maintenance- either pendent elite or permanent- are deductible by the person paying. Payments that are deductible by the payor spouse, are included in the income of the spouse receiving the money.

Monies expended by a spouse for the payment of medical insurance pursuant to court order, may be also treated as maintenance, deductible by the payor spouse and included as income by the receiving spouse.

These tax considerations compare to child support where payments are not deductible by the payor and are not included as income to the receiving spouse.