Divorce in NYS: How to Figure Maintenance

by Wayne Thomas
Judges may order temporary maintenance while a divorce action is pending in New York.

Judges may order temporary maintenance while a divorce action is pending in New York.

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Spousal maintenance, or alimony, is designed to ensure that the same standard of living enjoyed during the marriage continues after divorce. In New York, maintenance is available on a temporary or permanent basis, and a court will determine the award after considering several factors. A judge may also order support to be paid while the divorce action is pending, and has the authority to modify permanent awards upon a showing of a substantial change in conditions.

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Overview of Spousal Maintenance

By law, judges in New York are authorized to award support maintenance as part of a final divorce decree. The court has significant flexibility in denying or approving a maintenance request. It will consider the length of the marriage, the ability of each spouse to be self-supporting, and the specific circumstances of each party. These factors are not necessarily given equal weight in the court's decision.

Duration of Support

Judges in New York have flexibility in determining the length and amount of a maintenance award. The court considers several factors, including the health of the parties and each spouse's earning capacity. Payments may be either lump sum or paid out periodically, such as monthly. They may also be of permanent duration or temporary in nature. One reason to order a temporary award would be to support the education of a spouse who sacrificed a career to be a homemaker during the marriage. Once that specific event occurs, such as obtaining a college degree, the support terminates. In contrast, if a spouse cannot work due to age or illness, permanent alimony may be the only way to provide the spouse with the standard of living established during the marriage.

Temporary Maintenance

While a divorce is pending, New York law provides judges with the authority to order temporary spousal maintenance, referred to as pendente lite maintenance, which terminates once the divorce is final. This maintenance should not be confused with temporary final maintenance, which occurs after a divorce is granted. Pendente lite maintenance is paid by the higher earning spouse to the lower earning spouse and is calculated according to state guidelines. The guideline computes the award based on a percentage of the relative incomes of both parties.

Modification of Support

Permanent alimony awards in New York terminate upon remarriage. They may also end at the judge's discretion based on evidence that the receiving spouse has been living with someone in a way that resembles a marriage relationship. A court is also allowed to modify an award if there has been a substantial change in circumstances since the time of divorce. To be successful at modifying a support award, you must demonstrate that the personal and financial conditions existing at the time of divorce have changed. For example, a modification might be granted if an illness caused the recipient spouse to no longer be able to work. However, if the illness had been known at the time of divorce, its effect on employment may have been foreseeable, and the event would not constitute a change of circumstances. In this case, no modification would be granted.