Long Island Family Law and Mediation Blog
If you have been following the recent blogs published here this year, then you’ll notice that I have been providing a selection of bullet-point lists, summarizing my prior articles throughout the years designed to provide quick and easy information about crucial divorce topics. In the latest series, I am concentrating on matters that can arise during divorce litigation.
One of the concerns that is often discussed during divorce litigation, is the matter of spousal maintenance, otherwise known as alimony. These payments can be important to each spouse whose cash flow situation will change following the end of a marriage. Knowing how the New York courts determine spousal maintenance orders, and when they may deviate from set guidelines can help you when planning your divorce case.
Ordering Spousal Maintenance for Set Periods
When a court orders spousal maintenance as part of a divorce case, they will need to determine a number of things, including how much maintenance needs to be paid, and how long the support should continue. There are various guidelines in place to help guide, divorce lawyers and the courts in making these decisions.
- The New York Courts need to assess the factors addressed in Domestic Relations Law Section 236B when determining the duration of spousal maintenance. These guidelines break the duration of a marriage down into three categories and use the length of the marriage to determine how long maintenance should be paid. For instance, marriages lasting less than 15 years the guidelines suggest that the more monied spouse pay in between 15% to 30% of the length of the marriage. The durational guidelines increase for longer marriages.
- The Domestic Relations law allows for situations wherein presiding judges may feel that the guidelines are not able to adequately account for the situation in question. When this happens, the judge can order maintenance post-divorce for a duration that is longer or shorter than that recommended by the formula.
- If judges do decide to deviate from the guidelines, they are required to give their reasoning in writing. For example, maintenance payments may be higher or lower, or shorter or longer than the guidelines, in an appropriate exercise of discretion because of a significant income disparity between the husband and wife. The courts may also consider the other spouse’s ability to work, among other factors, into account when deciding on the amount of maintenance to be provided.
- Courts often explain that the award was designed to encourage self-sufficiency and rehabilitation where possible, while accounting for the substantial difference in earning power between both parties. In many cases, attorneys such as myself can use divorce litigation to argue for or against awards of post-maintenance payments that meet the needs of their client.
Deviating from Spousal Maintenance Guidelines
When a judge presides over a litigation case for a New York divorce, they do have certain powers in place to help with making decisions about things like alimony (spousal maintenance). Up until 2015, the determination of the duration and amount of post-divorce maintenance was often left to the judge’s discretion. However, New York legislature was changed significantly in 2015 by the Domestic Relations Law.
- To standardize the way in which judges could calculate and award post-divorce maintenance, the legislation stepped away from relying on judicial discretion and delivered a formula-based system, focused on the length of the marriage and various other factors.
- Domestic Relations Law 236 (B) still provides the court with some discretion in determining how long a party should be entitled to post-divorce maintenance. However, the formula for calculating the timeline offers a “range” as a percentage of time, based on the length of the marriage. This means that marriages lasting 15 to 20 years may allow for maintenance payments that last for 30% 40% of that time if the court was to stay within the guidelines.
- Judges can order post-divorce payments to last for a shorter duration than provided in the guidelines. Factors often referenced when deviating from the guidelines include the earning capacity of the parties, the age or health of the parties involved, and the future sources of income that both parties will have access to.
- There are two kinds of spousal maintenance that can be ordered during divorce litigation. The first option is pendente lite spousal maintenance, which is an amount paid during litigation. This temporary award only lasts for as long as the divorce proceeding, intending that both spouses can afford to pay expenses while the case if proceeding. The alternative form of spousal support is post-divorce maintenance which can continue either for a set term or until death in rare cases.
Can Judges Order Spousal Maintenance Below the Guidelines
Both forms of spousal maintenance available via divorce litigation are calculated by the formula contained in DRL section 236. Under certain circumstances, judges can deviate from the maintenance amount provided by that formula, awarding more or less support based on the circumstances.
- Judges may deviate and deliver less spousal maintenance than the amount suggested by the recommended formula when, after subtracting payments of maintenance, the paying spouse has an income lower than 135% of the poverty income restrictions.
- Judges may also depart from the suggested amount and award less money to a spouse when they believe that the award would be inappropriate or unjust. In these cases, the courts will need to consider various factors, including anything that they consider to be “just and proper”.
- In one case, the courts determined that asking a spouse to pay $37,000 in temporary maintenance would have a grave impact on the spouse’s own finances. The court noted that this would lead to a significant shift in resources. Although resources need to be shifted in some cases from one party to another in a divorce, the courts may refuse to follow guidelines when the shift is considered too substantial.
If you have any questions about the issues addressed above, please feel free to read some of the blogs and articles here on this website. Alternatively, you can reach out to me for your free initial consultation (up to the first half hour is free) using my online contact form, or the phone number 516-333-6555. Couples that wish to utilize me as their neutral divorce mediator will need to schedule their free initial consultation together.