Spousal Support and Maintenance

The law provides 15 factors that may be considered by the Court for post-judgment maintenance awards [DRL §236B(6)], 13 factors for temporary maintenance awards [DRL §236B(5-a)], and 14 factors for spousal support awards [FCA §412].  They each include a catchall “any other” factor.

Having a good understanding and “feel” for the nature and application of the factors used to deviate from the presumptively correct spousal support or maintenance figure can be critical to the success of your case.  Although some of the factors are obvious (age and health of the parties), some are not.

The factors are:

(1) the age and health of the parties;

(2) the present or future earning capacity of the parties, including a history of limited participation in the workforce;

(3) the need of one party to incur education or training expenses;

(4) the termination of a child support award before the termination of the maintenance award [during the pendency of the spousal support award] when the calculation of maintenance [spousal support] was based upon child support being awarded which resulted in a maintenance [spousal support] award lower than it would have been had child support not been awarded;

(5) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action [support proceeding] without fair consideration;

(6) the existence and duration of a pre-marital joint household or a pre-divorce [pre-support proceeding] separate household;

(7) 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 ;

(8) the availability and cost of medical insurance for the parties;

(9) 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;

(10) the tax consequences to each party;

(11) the standard of living of the parties established during the marriage;

(12) 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;

(13)  the equitable distribution of marital property and the income or imputed income on the assets so distributed; (not a factor in the temporary maintenance law)(not a factor in the spousal support law)

(14) 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; (not a factor in the temporary maintenance law)

(15) any other factor which the court shall expressly find to be just and proper.