In New York, spousal support is known as “maintenance”. Recently, New York moved to a formula based approach to both temporary (while the divorce is pending) and final (post-divorce) maintenance formula.
During the pendency of a divorce action, the Court uses the formula set forth here.
For post-divorce maintenance, the Court uses the formula set forth here.
Although these calculators can provide you with a potential amount of maintenance, the Court can deviate from such calculations should it deem the calculated amount to be “unjust or inappropriate”, as follows:
Temporary maintenance:
The age and health of the parties;
The present or future earning capacity of the parties, including a history of limited participation in the workforce;
The need of one party to incur education or training expenses;
The termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;
The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
The existence and duration of a pre-marital joint household or a pre-divorce separate household;
Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
The availability and cost of medical insurance for the parties;
The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
The tax consequences to each party;
The standard of living of the parties established during the marriage;
The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and
Any other factor which the court shall expressly find to be just and proper.
Post-divorce maintenance:
Factors 1-13 listed above can also be used by the Court for post-divorce maintenance calculations if the Court deems the amount calculated is “unjust or inappropriate”, plus the following factor:
The equitable distribution of marital property and the income or imputed income on the assets so distributed; and
The contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party.
High Net Worth cases:
Where the payor's income exceeds the income cap, the court shall determine the guideline amount of post-divorce maintenance as follows:
The court shall perform the statutory calculations for the income of payor up to and including the income cap;
For income exceeding the cap, the amount of additional maintenance awarded, if any, shall be within the discretion of the court which shall take into consideration any one or more of the factors set forth above; and
The court shall set forth the factors it considered and the reasons for its decision in writing or on the record. Such decision, whether in writing or on the record, may not be waived by either party or counsel.
At trial, if you are the spouse seeking maintenance, your attorney will present evidence and elicit testimony regarding all of the applicable factors. It must be demonstrated to the Court that, without spousal maintenance of a certain amount, you will be unable to reestablish yourself in the workforce and continue to live a somewhat similar lifestyle that you enjoyed during the marriage. You must remember that litigation is not an exact science and no attorney can guarantee the type of maintenance award you will receive. As always, preparation is the key, including the use of experts (accountants, lifestyle analysts, etc.), too bring forth the best case possible to ensure the Court has all available information at its fingertips when making a decision on spousal maintenance.