Maintenance, which is also commonly referred to as “alimony” and “spousal support”, is a monetary payment from one spouse to the other, typically in conjunction with separation or divorce.   Either spouse, male or female, can be ordered to pay maintenance to their spouse by the court.    In New York, a separate proceeding for maintenance can be commenced in the Family Court.  Maintenance can also be awarded by the Supreme Court in conjunction with a divorce proceeding.  In New Jersey, the term “alimony” is used, and it may be awarded by the Superior Court in connection with any divorce proceeding.  Maintenance can be awarded while the case is pending (this is referred to as pendente lite maintenance), and also at the conclusion of the case (which is referred to as “final” maintenance).  Because of the complexity of determining the amount and duration of maintenance, you should consult with an experienced divorce lawyer if maintenance/alimony is at issue in your divorce case.

Unless the parties agree otherwise, maintenance/alimony is taxable income to the recipient and is an income deduction for the payer.  Taxation/deduction rules relating to alimony payments are set forth in 26 U.S. Code § 71.

Typically, maintenance is awarded to the “dependent” spouse for a specific period of time.  In most instances, the amount and duration is determined on the basis of how much time and money is needed for the recipient (dependent spouse) to achieve the standard of living that the parties enjoyed during the marriage.  In some instances (particularly in divorce cases involving long-term marriages), a court will order “permanent” maintenance.

In both New York and New Jersey, the duration of maintenance payments is often based on the duration of the marriage.  Sometimes, a judge will order that maintenance/alimony be paid for a period of time equivalent of one-half the duration of the parties’ marriage.  This is oftentimes referred to as the “California Rule” (this rule of thumb gets its name from Section 4320(k) of the California Family Code, which provides that the “reasonable” duration for maintenance is generally one-half the length of the marriage except for marriages lasting longer than 10 years).   Even though New York and New Jersey are located thousands of miles away from California, you will hear New Jersey and New York divorce lawyers using the phrase “California rule” to describe the rule of thumb for the duration of spousal support.

At the end of a divorce case, a “final” decision regarding the amount and duration of maintenance will be made by the court and/or agreed upon by the parties.  If the court decides, the factors that are considered include:

  • The length of the marriage
  • The conduct of the parties during the marriage
  • Age and health of the parties
  • Occupations of the parties and their incomes
  • Sources of income
  • Vocational skills and employability of the spouses
  • Assets and debts of the parties
  • Any special needs of the parties
  • The opportunity of the parties to acquire future income and assets

Three Types of Maintenance/Alimony Awards:

In both New York and New Jersey, awards of alimony can generally be divided into three different categories:

  • Permanent Alimony: periodic payments intended to cover costs such as food, housing, clothing, and other costs of living incurred by the other (dependent) spouse. If a dependent spouse is requesting permanent alimony, they must prove their need for such support. Permanent alimony, once awarded, remains in effect indefinitely or until there is a change in circumstances, which may lead to a review of the arrangement.
  • Rehabilitative Alimony: payment(s) designed to provide the necessary support to enable a spouse to refresh or develop job skills that will allow them to secure a vocation. This is a common form of alimony and it is temporary.
  • Restitutional/Reimbursement Alimony: repayment of support given to a spouse while they were pursuing their education or enhancing vocational skills.

New York’s Temporary Maintenance Statute:

On October 12, 2010, New York adopted a new temporary maintenance law, which sets forth a formula for awarding temporary (pendente lite) maintenance.  The formula provides that temporary maintenance should be the lesser of the sums derived by the following two equations:

  1. 30% of the higher-earning spouse’s income, minus 20% of the lower-earning spouse’s income.
  2. 40% of their combined income, minus the lower-earning spouse’s income.

Before the temporary maintenance law, judges had discretion to set temporary awards based upon the actual needs of both parties, and there were no guidelines or formulas.  Because there were no formulas, the amounts were often inconsistent and lacked predictability.  The “formula” approach was intended to create uniformity.  In actual practice, however, many New York judges find that using the formula in certain cases is inappropriate, and they continue to order maintenance based on their individual assessment of the parties’ circumstances.

The New York temporary maintenance “formula” actually consists of two different equations.  The court is supposed to calculate maintenance based on both equations, and then order the lesser amount as temporary maintenance.

Here is an example of how the new formula is applied, assuming one spouse’s income is $50,000 and the other spouse’s income is $30,000: (amount of temporary maintenance per year is supposed to be the lower of the amounts derived by Formula #1 and Formula # 2)

Equation 1:
Take 30% of the income of the higher income spouse: $15,000
Subtract 20% of the income of the lower income spouse:      -$6,000 = $9,000
Equation 2:
Calculate 40% of the combined income of the spouses: $32,000
Deduct the lower-earning spouse’s income:  ($32,000 minus $2,000) $2,000
The presumptive award amount is the lower of the two equations: $2,000

There are circumstances in which the new formula approach doesn’t apply. According to DRL 236-B(5-a)(e), if the court finds the formula approach to be unjust or inappropriate, the court may deviate from the formula based on factors contained in the statute, such as age, health or earning capacity of the parties. Under some circumstances, the application of the formula is inappropriate.

One issue that frequently arises is how the formula should be applied where the payor-spouse is already paying carrying charges for the marital residence. In A.C. v. D.R, 927 N.Y.S.2d 496, the court decided to deduct from the husband’s income carrying charges he had been paying on marital residence. Similarly, in Francis v. Francis, 111 A.D.3d 454, the appellate court reversed the trial court’s temporary maintenance decision because the trial court had failed to reduce the amount of alimony to account for the husband’s continued payment of carrying costs for the marital residence. The court noted that the formula in the new maintenance law should cover all the spouse’s basic living expenses, including housing costs.   Thus, the lower court’s order directing the husband to pay temporary maintenance pursuant to the formula, as well as housing costs, was deemed duplicated and excessive.

Even though four years have passed since New York’s temporary maintenance law went into effect, courts are still grappling with the myriad of difficult issues associated with its application in various cases, including when and how the formula should be applied. Simply stated, the amount of maintenance derived by applying the formula sometimes seems excessive.  Thus, the new law, which was intended to make temporary maintenance decisions easier and more predictable, has (in the eyes of many New York divorce lawyers and judges) merely made things more confusing and complicated.