Spousal Maintenance & Support (Alimony)
Upon marriage, spouses acquire certain legal rights and obligations. The laws are identical, regardless of gender. One of the most fundamental legal obligations that couples acquire upon marriage is the duty to financially support each other. Generally, the “monied spouse”, (the one who earns higher income), is required to financially support the spouse who is unemployed, homemaker, or earning insufficient income to be “self-supporting”, known as the “non-monied spouse.
This legal obligation lasts throughout the length of the marriage, regardless of whether the spouses are residing together or separate, so long as they remain married. The obligation continues even after the commencement of an action for a divorce in New York, and during the pendency of the divorce action, while the spouses continue to be “legally” married although they may no longer live in the same household.
While spouses remain married, in the event that the “monied spouse” fails to support the other spouse, the legal remedy for the “non-monied” spouse is to initiate a support proceeding in the New York Family Court. The Family Court is considered to be a “lower court” with limited jurisdiction to hear cases involving family disputes (including maintenance/alimony). The Family Court does not have jurisdiction to determine divorce actions and the equitable distribution of the marital assets. The Supreme Court of the State of New York is a court of “higher jurisdiction” and it has exclusive jurisdiction to determine divorce actions including child custody, child support, spousal maintenance (alimony), and the equitable distribution of the parties’ marital assets.
The Family Court and the Supreme Court have “concurrent jurisdiction” over the issues that are ancillary to a divorce case, such as the custody of the minor children, child support, spousal maintenance/alimony, health benefits and issues of domestic violence and orders of protection.
In a New York divorce case, the period of time from the date the action for a divorce is filed in the State Supreme Court, through the date when the Judgment of Divorce is signed by the Judge and entered in the minutes of the County Clerk, is known in Latin as pendente lite, which is literally translated into English as “meanwhile” or “pending litigation” or “while the action is pending.”
In the event that the “non-monied spouse” does not receive an adequate amount of financial support from the “monied spouse” while the divorce action is pending, he/she has the legal right to make a formal application to the Supreme Court for “pendente lite” maintenance (alimony) and counsel fees, along with other related issues. Attorney Ingrid Gherman has won countless temporary maintenance awards for clients who were entitled to them.
Until October 12, 2010, the New York Courts determined whether or not the non-monied spouse was entitled to pendente lite maintenance/alimony and calculated the weekly or monthly amount of maintenance payable to the needy spouse based upon his/her the actual need and the amount that the monied spouse could pay. The Divorce Reform Act of 2010 has amended the NY Domestic Relations Law by putting in place specific guidelines that Courts are required to apply in determining the amount of maintenance the monied spouse is required to pay to the non-monied spouse, as well as the amount of counsel fees in order to “even the playing field” and to place both spouses on an equal footing during the pendency of their divorce case.Post-Divorce Maintenance Awards (Lifetime and Durational Maintenance in New York)
Post-divorce maintenance awards include “durational” and “lifetime” support. “Maintenance” is defined by the NY Domestic Relations Law as any payments named or listed in a marital agreement or those payments that the court awards which are to be paid for a specified or indefinite time period. Payments of maintenance stop because of either spouse’s death or upon the re-marriage of the recipient spouse. Durational maintenance allows the recipient spouse a chance to attain economic independence.
An award of lifetime maintenance by the court is made to a spouse who does not have a chance of supporting herself or himself either because of age, poor health, limited work history or employment experience, little or no prospects of employability, and unable to earn a sufficient living; whereas the other spouse has promising livelihood expectations.
Divorce attorney Ingrid Gherman has a vast experience winning justifiable temporary, durational, and lifetime maintenance and support for her clients. If you have questions about whether you qualify for maintenance award either during or after your divorce, call 212.941.0767 for a consultation or send in the on-line form.