In New York divorce, a spouse's entitlement to Maintenance (alimony) and the Equitable Distribution of marital property are contained in the statutory factors enumerated in the New York Domestic Relations Law Section 236(B).

The New York courts will consider factors such as: Length of the Marriage; Conduct of the Parties during the Marriage; Age and Health of the Parties; Occupation of the Parties and their respective incomes and sources of income; Vocational Skills and Employability of the spouses; Estate of the spouses; Liabilities of the spouses; Needs of the spouses; Opportunity of the spouses to Acquire Future Income and Capital Assets;

The elements of the New York statute are listed here for general information only and to indicate the complexity of factors that the court must consider in rendering its decision. Every case is different and a judge will weigh some factors in a particular case more than others depending on the facts of the case.

LIFETIME AND DURATIONAL MAINTENANCE IN NEW YORK

In the New York Domestic Relations Law, Section 236(B), the term "alimony" was changed to "maintenance" and the New York court was authorized to award maintenance (also known as "spousal support"), for a definite period of time "durational maintenance" or for an indefinite "nondurational" award to last until death or remarriage.

Most durational maintenance awards were made on the premise that the dependent spouse could become self-supporting after several years.

In New York, durational maintenance is more commonly awarded where the spouse seeking support "is relatively young and healthy and" is not required to care for young children.

Lifetime maintenance has been awarded, the recipient spouse has almost invariably been older and often in impaired health and the supporting spouse was in far better financial condition.

Lifetime maintenance in New York was directed in a case, for example, where the wife was 52 and never worked, while the husband earned over $100,000 per year; or where the husband owned a successful insurance business and the wife had never worked; where the wife was 50 and had psychiatric problems and the husband earned $58,000 a year.

In general, lifetime maintenance is awarded where one spouse's business expectations were promising but the other spouse had limited potential earning capacity.

In New York, where the spouse seeking support and maintenance is relatively young and healthy and is not required to care for young children, durational maintenance has more commonly been awarded.

The realistic function of durational maintenance is to allow the recipient spouse an opportunity to achieve independence. Thus, the award should be in an amount and for a time period sufficient to give her a reasonable period of time in which to learn or update her work skills and to enter the employment market with a view to being self-supporting.

In the New York Domestic Relations Law the statutory factors for the NY Court to consider set forth in DRL 236[B][6][d][1-11]. These statutory factors reveal legislative concern pertaining to the earning capacity of the spouses and to the equitable or meritorious nature of the application for maintenance. Moreover, equity requires that the spouses' marital standard of living must be considered in gauging the ability of the recipient spouse to become self-supporting, and the amount of maintenance to be awarded by the court.

For example, while a recipient spouse with earning capacity of $20,000 per year may be considered self- supporting in a given case, that same income may be deemed insufficient in the case of a spouse who had enjoyed a higher marital standard of living.

What happens if the spouse who receives durational maintenance is still not capable of self-support after the specified period of time? Could the award of durational maintenance or spousal support be extended for a longer period of time?

Most New York cases where the duration of a maintenance award has been extended involve some serious change in the spouse's physical or mental health condition, which can be objectively viewed as preventing that spouse from being capable of self support.

If the durational award of spousal support (maintenance) has already been paid in full, after the expiration of the award, can the payee spouse request the NY Supreme Court or the NY Family Court to make an application to reinstate that expired maintenance award or to modify its amount?

New York Domestic Relations Law Section 236B(9)(b) provides:"Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance, including financial hardship."

The NY Courts have the authority to reinstate a maintenance award where economic independence is not a realistic goal or where a subsequent change in circumstance prevents the goal from being reached. This was recently done in a case where the payee spouse was not merely in danger of becoming a public charge but was already receiving public assistance.

Ingrid Gherman, P.C.

225 Broadway, Suite 1405

New York, New York 10007

Phone: (212)941-0767

Ingrid Gherman, Esq. - family, matrimonial attorney and divorce lawyer in New York, NY, Manhattan and greater New York City area

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