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A primer on spousal support (maintenance) in New York

Maintenance is one of the four main legal issues negotiated during divorce.

A divorce proceeding generally requires a couple negotiate the following legal issues: property division, alimony and - if children are present - child custody and child support. This piece will focus specifically on maintenance, which is also referred to as spousal support, formerly called "alimony".

Maintenance is the payment made by one spouse to another either while the divorce is pending (temporary maintenance) and/or after the divorce judgment has been granted, to help one spouse meet his or her financial needs. The length of maintenance is guided by the length of the marriage.

How to determine spousal maintenance payments? The Legislature has enacted maintenance guidelines, which contain a calculation of the amount of, and time frame for which, maintenance may be awarded to a spouse. The guidelines call for two calculations, both of which require the parties to first calculate their adjusted income as follows: Each party must deduct Social security tax, Medicare and New York City or Yonkers tax from their gross income to calculate the adjusted income. A rule of thumb is to deduct 10% of one's gross income to get a rough adjusted income, of course it is always better to use the actual figures.

The first calculation takes 20 percent of the paying party's annual adjusted income then subtracts 25 percent of the receiving party's annual adjusted income. Divide this number by 12 to come up with a monthly payment amount.

The second uses 40 percent of the combined annual adjusted income of both parties and subtracts the annual adjusted income of the recipient spouse. The court will then divide this number by twelve to determine the monthly payment. The lower of the two numbers is considered the "guideline" amount but is not binding on the court.

There are 17 factors enumerated in the statute which may be used to deviate from the guideline amount. These factors include but are not limited to the income of both parties, age and health of the parties, future earning capacity, presence of children and the length of the marriage.

The parties may agree to deviate from the maintenance payment amount determined by the maintenance calculator. If both are in agreement, a court will generally support a deviation.

It is extremely important to note that the guidelines were put into effect at a time when spousal support was deductible by the payor. That is no longer the case, unless a "documents of divorce" (more on that later) was in effect in 2018. An argument may be made for deviation from the guidelines based on the fact that spousal support will not be deductible for agreements or divorces signed in 2019 or later.

How can I better ensure a fair spousal maintenance award? Steps can be taken to help better ensure a fair award whether you are the party making the spousal maintenance payment or the party receiving the payment. Contact an attorney to discuss your options.