In New York, what many refer to as alimony is called spousal maintenance or spousal support. Until relatively recently, maintenance was left to the discretion of judges, each with their own approach based on their understanding of the law and their view of the circumstances. When advising clients in the Rochester area, attorneys had to tailor their predictions based on their experience with a particular Rochester judge or their overall experience with several judges in the area.
New York now has a spousal maintenance formula. There’s different calculations depending on whether the spouse paying maintenance is also paying child support, and both are income driven. As a result, it is very important that the income used for support purposes is correct, that it includes or excludes appropriately, especially where a party has their own business, is underemployed or has reduced earnings in anticipation of a divorce.
After incomes are put into the appropriate formula, a presumptively correct amount comes out. In other words, the resulting number should be the amount of spousal maintenance, unless that number, to the judge, is “unjust or inappropriate.” To make that determination, the statute lists 20 reasons, including:
- The standard of living of the parties established during the marriage
- The length of the marriage
- The age and health of the parties
- The present and future earning capacity of the parties
- The need of one party to incur education or training expenses
- The ability of the party seeking maintenance to become self-supporting, and, if applicable, the period of time and training necessary therefor
- Reduced or lost lifetime earning capacity of the party 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 the parties
- The equitable distribution of marital property
- Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party
- Any other factor which the court shall expressly find to be just and proper
Whether a judge will depart from the guidelines requires an attorney who practices before with experience before the judges and matrimonial referees who will be deciding your case.
Duration of spousal maintenance is also guided by statute, which states the “court may determine the duration of post-divorce maintenance in accordance with the following schedule:”
0 through 15 yrs.
15 through 20 yrs.
Over 20 yrs.
15% to 30% of length of marriage
30% to 40% of length of marriage
35% to 50% of length of marriage
Where appropriate, a court may impose non-durational spousal maintenance.
Mark Bezinque has significant experience in the greater Rochester area before judges and matrimonial referees addressing spousal maintenance. He has lectured to the Monroe County Bar, before judges and attorneys, on the application, changes and nuances of the spousal maintenance guidelines and has made similar presentations before mediators and the Collaborative Law Association of the Rochester Area.