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The Right to Spousal Support

What is Spousal Support?

Spousal support is also called "Maintenance" and was formerly called "Alimony".

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What is Durational Maintenance?

It is maintenance for a fixed period of time.

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What is "Permanent", "Lifetime" or "Non-Durational" Maintenance?

It is maintenance for a period of time that is not fixed by the court.

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How is Maintenance Calculated?

The Court must consider the standard of living of both spouses that was established during the marriage, the circumstances of the case and of the parties, whether the spouse who is getting the award lacks sufficient property and income to provide for his/her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the other's reasonable needs.

Factors which must be considered in determining amount and duration are:

  • The income and property of each spouse including marital property distributed to each spouse.
  • The duration of the marriage and the age and health of each spouse
  • The present and future earning capacity of each spouse
  • The ability of the spouse seeking maintenance to become self supporting and, if applicable, the period of time and training necessary to do so
  • Reduced or lost lifetime earning capacity of the spouse seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage
  • The presence of children of the marriage in the respective homes of each spouse
  • The tax consequences to each spouse
  • Contributions and services of the spouse seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other spouse
  • The wasteful dissipation of marital property by either spouse
  • Any transfer of property or encumbrance made in contemplation of a matrimonial action without fair consideration
  • Any other factor which the Court shall expressly find to be just and proper

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Do I get More Maintenance or Equitable Distribution if my Spouse Committed Adultery or Committed Cruel and Inhuman Treatment?

It depends on what part of the state of New York the action is brought. The role of marital fault is largely irrelevant with regard to the distribution of marital property and with regard to maintenance. The statutory factors for the distribution of marital property and for setting the amount and duration of maintenance make no reference to marital fault. However, there is a catchall factor which permits the court to consider "any other factor which the court shall expressly find to be just and proper". Marital fault in general is irrelevant under the Equitable Distribution Law of New York and should be considered only when it is so uncivilized or egregious that it shocks the conscience of the court. Even where the misconduct is egregious, it is just ne factor among many which must be considered by the court. Examples of "egregious" misconduct are (1) the dissipation of marital assets by a gambler spouse, and (2) making a contract to have a spouse murdered. The courts in the Third Judicial Department [which includes the Albany area upstate New York] have rejected this rule when it comes to the role of marital fault with regard to maintenance and consider egregious marital fault in fixing maintenance awards.

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Can a Man Be Awarded Maintenance?

Yes. Support laws are "gender-neutral".

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Will Maintenance end if I Remarry?

Yes.

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What Factors do the Courts Consider in Determining Whether to Award Durational or Permanent Maintenance?

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. The function of durational maintenance is to allow the recipient spouse an opportunity to achieve financial independence. Where a marriage is of short duration and especially if the parties have no children, New York courts are reluctant to grant permanent maintenance. Unless the applicant establishes dependency, the prevailing policy is to award rehabilitative (durational) maintenance, if any, is awarded at all. Where permanent maintenance has been awarded, the recipient spouse has almost invariably been older and often in impaired health while the supporting spouse was in a far better financial condition. New York courts in awarding maintenance are concerned about the length of the marriage, the ages, health and earning capacity of the respective parties. The duration of maintenance is most likely to be permanent where it is a long marriage, and durational where it is a short marriage. The the pre-divorce standard of living is a mandatory factor for the court's consideration in determining the amount and duration of the maintenance award.

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For More Information on Spousal Support

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