Long Island Spousal Support Attorneys

Serving Nassau and Suffolk County

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. For tax purposes, these payments are deductible to the payor, 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 a Settlement Agreement or the holding out by the recipient and another as husband and wife. For assistance with a spousal support matter, do not hesitate in contacting the Long Island spousal support lawyers at Wand, Powers & Goody, LLP.

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, which were modified in October 2010:

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

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

3. the length of the marriage;

4. the age and health of both parties;

5. the present and future earning capacity of both parties;

6. the need of one party to incur education or training expenses;

7. the existence and duration of a pre-marital joint household or a pre-divorce separate household;

8. acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;

9. the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefore;

10. 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;

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

12. the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity;

13. the inability of one party to obtain meaningful employment due to age or absence from the workforce;

14. the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;

15. the tax consequences to each party;

16. the equitable distribution of marital property;

17. 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;

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

19. the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

20. the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and

21. any other factor that 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, as well whether the spouse who needs maintenance has the income or property to provide for his or her reasonable needs going forward and whether the other spouse has sufficient income and property to provide for the spouse in need.

A Long Island spousal support attorney at Wand, Powers & Goody, LLP can explain to you that 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 basis and are fact sensitive. That said, spousal support is often viewed as "rehabilitative" in nature. This 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 his/her mid-fifties or older who has never worked, or has 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 spouse 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 a matrimonial action is pending and before execution of an agreement or before a final Judgement of Divorce is granted, 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 of paramount consideration is maintaining the status quo while the action is pending as compared to the standard of living enjoyed by the parties prior to the commencement of a divorce action. Most pendente lite orders are awarded based on affidavits submitted to the courts, and not after a trial 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 trial. For assistance requesting maintenance from the court, contact a trustworthy Suffolk County spousal support attorney.

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

For cases filed prior to October 2010, the maintenance award was completely left to the discretion of the court. This led to inconsistent and sometimes inadequate support orders.

Now a statutory formula has been enacted which is applicable for families earning less than $500,000. A different guideline has been written for families earning more than $500,000.

For cases filed after October 2010, the methodology for calculating temporary maintenance changed.

If the non-monied spouse’s income is less than two-thirds of the monied spouse’s income, two calculations are performed in order to determine the support amount. If the non-monied spouse’s income is not less than two-thirds of the monied spouse income, then temporary maintenance is not awarded.

When the two calculations are performed, the Court then selects the lower amount of the two calculations and awards that sum to the non-monied spouse as temporary maintenance. However, judges do have discretion and some have already used that discretion to deviate from using the calculations when they find that they create an “unjust” or “inappropriate” result.

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, only maintenance terminates. Child Support continues until the children are emancipated. The knowledgeable team of Suffolk County spousal support attorneys at Wand, Powers & Goody, LLP can provide you with in-depth information on spousal maintenance and child support.

Health and Life Insurance

It may be proper in some cases to provide in an agreement or request that a Court Order that the spouse who has an obligation to pay spousal maintenance or child support should maintain a life insurance policy for a period to correspond to the time during which the financial obligation 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 no longer being paid by 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. Upon the execution of a Judgement of Divorce, a now former spouse is no longer eligible to receive medical benefits under the former spouse’s medical insurance. However, under the federal law, commonly referred to as COBRA, the now uncovered spouse may secure medical insurance for up to thirty six months through the former spouse’s employer-sponsored health insurance policy.

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

Where a spouse is unable to secure life insurance because of physical condition or age, other means to ensure that upon death , the payor’s financial obligations may be satisfied, if possible, to secure the obligation, i.e. - mortgage on property owned by the payor spouse.

Tax Considerations

Payments of spousal maintenance- either pendent elite or permanent- are deductible by the person paying the obligations. Payments that are deductible by the payor spouse, are included in the income of the spouse receiving the money. Parties may decide, or a Court may order, that the spousal maintenance are neither deductable by the payor or includable by the receiver.

Other monies expended by one spouse for the benefit of the other spouse, 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.

Please contact Wand, Powers & Goody, LLP at their Long Island spousal support law firm with any questions regarding the foregoing.