Spousal Support & Maintenance

Maintenance is a periodic payment made to a spouse by the other spouse for his or her support. If it is made during an action for divorce (before the judgment of divorce) it is called temporary maintenance.  If a spouse qualifies for maintenance, she (or he) can obtain both an award of temporary maintenance and, once the judgment of divorce is issued, maintenance for a period of years following the divorce.

The critical difference between spousal support and maintenance is that spousal support is awarded to a dependent spouse in an intact marriage. Because an intact marriage has no set duration, spousal support also continues indefinitely. There are two ways spousal support can be awarded: (1) in a proceeding brought in Family Court for spousal support (often brought in the same petition for child support); and (2) as a component of a legal separation (as opposed to a judgment of divorce).  Though spousal support has no expiration date, it is not a substitute for maintenance where the parties are likely to be divorced, since spousal support terminates in all cases when a judgment of divorce is issued.

A spouse whose income is substantially less than the other spouse is eligible for maintenance.  For cases commenced after January 23, 2016, when an amendment to the statute governing maintenance went into effect, maintenance is determined by the application of a formula employing the parties’ incomes.  The same formula is used for both temporary maintenance and final maintenance awards, and results in a presumptively correct maintenance figure.  The income of the spouse making more money (the “monied spouse”) is currently capped at $192,000.  The formula for determining maintenance uses two equations; the equation that produces the lower number becomes the presumptively correct maintenance. For more information, please see the NY Court’s Spousal Maintenance Guidelines Calculator.  It is important to note that the presumption of the correct maintenance amount provided by the formula can be defeated.  The statute provides numerous factors that the court can consider should one of the parties wish to challenge the presumptively correct amount. These factors, if applied, could cause the presumptively correct amount to go up or down; for example, acts of domestic violence that “inhibit earning capacity” could cause the amount to go up. On the other hand, if the parties were separated for a long time before the divorce and the lower-income spouse supported herself adequately without maintenance, this “pre-divorce separate household” could conceivably reduce the amount of temporary maintenance below the presumptively correct amount.

Although there is no set rule determining the length of a maintenance award, the statute (eff. 1/23/16) provides guidelines for the duration of an award. For marriages less than 16 years in duration, the duration of maintenance is suggested to be 15 to 30% of the duration of the marriage.  For marriages that lasted 16 to 20 years, the suggested duration is 30 to 40% of the length of the marriage.  Finally, for long term marriages lasting longer than 20 years, the suggested duration is 35 to 50% of the duration of the marriage.  Again, these are just suggested durations.  The determination of duration remains within the discretion of the judge, who may be guided by factors set forth in the statute as well as case law.  In all cases, maintenance will terminate upon death or remarriage. Often, when settling, the parties will agree to also terminate maintenance upon the cohabitation of the dependent spouse with a paramour.