MAINTENANCE (ALIMONY OR SPOUSAL SUPPORT)

I have been a homemaker since our marriage 15 years ago when I was 25. How much maintenance should I receive? I have worked through most of my married life but my current salary is barely enough for me to get by. Will I receive maintenance? How much will I receive?

If you have a lower income than your spouse, you are eligible to receive maintenance (also known as spousal support or alimony) from your spouse. The amount of maintenance you are eligible to receive is determined by specific formulas, which are outlined below. If you receive maintenance, you are called the “payee”; the person paying maintenance is the "payor."

You may be eligible for maintenance while your divorce is ongoing (which is called "temporary maintenance") and/or after your divorce is final (which is called “post-divorce maintenance”). The formulas below apply for both temporary maintenance and post-divorce maintenance.

This means the court will only consider up to the income cap of the payor's income in its maintenance calculations. You should confirm the current cap online or with your lawyer. If the payor's income exceeds,the income cap, the court may award an additional amount of maintenance. For more information on payments on income over the income cap, see the next section.

There are two formulas used to calculate maintenance. If you and your spouse have children and you are the custodial parent of your shared children and your spouse is also paying you child support, then the lower formula will apply. In all other instances, including if you and your spouse do not have children, the higher formula will apply.

Lower Formula: Where the income of the payor is less than or equal to $192,000, and where that person is also paying child support, the amount of temporary or post-divorce maintenance is determined by the following calculations:

1. Result 1: Take 20% of payor's income up to $192,000, then subtract 25% of the payee's income.
2. Result 2: {i} Take the payor's income up to $192,000, then add the payee's income. {ii} Multiply the combined total above by 40%. {iii} Then subtract the payee's income from the above.
3. The lower of Result 1 and Result 2 is the guideline amount of maintenance to be paid annually. If either Result 1 or Result 2 is negative, the amount will be zero.

Higher Formula: Where no child support is being paid by the payor, the amount of temporary or post-divorce maintenance is determined by the following calculations:

1. Result 1: Take 30% of payor's income up to $192,000, then subtract 20% of the payee's income.
2. Result 2: {i} Take the payor's income up to $192,000, then add the payee's income. {ii} Multiply the combined total above by 40%. {iii} Then subtract the payee's income from the above.
3. The lower of Result 1 and Result 2 is the guideline amount of maintenance to be paid annually. If either Result 1 or Result 2 is negative, the amount will be zero.

Note that the maintenance award can be adjusted downward if, after paying maintenance, the payor's income would fall below a pre-determined amount. See the below question “I am the payor spouse under the maintenance guidelines, and I am concerned that I will not be able to support myself if I am required to this maintenance. Is there any protection for me?” for more information.

For an online maintenance calculator or workbook for these guidelines, you may visit: http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml.

These guidelines were created in January 2016 and only apply to divorce proceedings that were started on or after January 25, 2016.

My spouse's annual income is greater than $192,000the income cap. Can I receive additional maintenance beyond the guidelines?

Yes, but any additional maintenance will be up to the court's discretion. The court will still apply the formulas outlined earlier in this section to the payor's income up to $192,000the income cap. However, the court then has discretion to award temporary and post-divorce maintenance with regard to the payor's income in excess of $192,000.the income cap.

For temporary maintenance, in making this decision, the court will consider the following factors. These are called the “13 Temporary Maintenance Factors.”

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 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 if child support had not been awarded.
5. The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration.
6. The existence and duration of a pre-marital joint household or a pre-divorce 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 459(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; and
13. Any other factor which the court shall expressly find to be just and proper.

For post-divorce maintenance, the court will consider the 13 Temporary Maintenance Factors listed above, except that factor #4 regarding the termination of child support will not be limited to the temporary maintenance period. In addition, the court will consider the following two factors. When combined, these are called the "15 Post-Divorce Maintenance Factors."

1. The equitable distribution of marital property and the income or imputed income on the assets so distributed; and
2. 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.

I calculated the maintenance that my spouse is required to pay me under the guidelines, but I do not think this is a fair amount. What can I do?

If you believe the maintenance awarded to you under the guidelines on income up to the income cap is unjust or inappropriate, you can ask the court to order the payor to pay an adjusted amount. In making this decision, the court will use the same factors described under the previous question.

Based on the maintenance guidelines, I am eligible to receive maintenance. For how long will I receive maintenance?

The court will determine how long the maintenance award will be paid. In making this decision, the court must consider the 15 Post-Divorce Maintenance Factors outlined above. The court may also consider an advisory schedule which provides suggestions for the number of years maintenance should be paid based on the length of the marriage. The current guidelines are:

For example, if you have been married 10 years on the date your divorce was commenced, the advisory schedule advises a maintenance payment for 15%-30% of the number of years you were married. This would equal between 1.5 and 3 years.

The court may take into account any anticipated retirement assets, benefits and the retirement eligibility (including age and other requirements) of both parties, if these facts are ascertainable at the time of the court's decision.

I am the payor spouse under the maintenance guidelines, and I am concerned that I will not be able to support myself if I am required to pay maintenance. Is there any protection for me?

If the guideline amount of temporary or post-divorce maintenance would reduce your income (as the payor) below a pre-determined amount (which is called the "self-support reserve"), then the court may adjust the maintenance award. This is known as the "low income adjustment." The formula for calculating the low income adjustment is outlined below.

The self-support reserve changes every year. You should confirm the current amount online or with your lawyer.

Low Income Adjustment: Take the payor's income up to the income cap, then subtract the calculated maintenance payment (as determined using either the Lower Formula or the Higher Formula outlined earlier in this guide).

1. If the result is greater than the self support reserve, no adjustment will be made.
2. If the result is less than the self support reserve: {i} Take the payor's income up to the income cap, then subtract the amount of the self support reserve. {ii}If the result is greater than zero, this will be the amount of maintenance owed. {iii} If the result is less than zero, then no maintenance will be awarded.

Are my spouse and I required to follow the maintenance guidelines?

No, you and your spouse can agree to waive the right to, or “opt-out” of, the maintenance guidelines in a properly executed and acknowledged written agreement.

What can I do if my spouse fails to pay court-ordered maintenance?

Legal remedies for the enforcement and collection of court-ordered maintenance include obtaining money judgments for the unpaid maintenance, obtaining a wage deduction order on the payor spouse, sequestering personal property and real estate of the payor spouse, requiring the payor spouse to provide security for payments of maintenance and holding the payor spouse in contempt of court and subjecting the payor spouse to jail, among other remedies.

Is there tax on an equitable distribution, maintenance and child support?

There is no tax on an equitable distribution award.

For federal tax purposes, child support payments are not tax deductible by the payor and are not includable in the recipient's taxable income. In New York, the payor may be eligible for an earned income credit if the payor's child support payments are payable through the New York State Support Collection Unit. For more information, see: https://www.tax.ny.gov/pit/credits/nceic.htm.

As of January 1, 2019, maintenance is no longer tax deductible to the payor and is no longer includable in the recipient's taxable income for federal tax purposes. However, for New York tax purposes, maintenance is still deductible for the payor and is includable in the taxable income of the recipient.

The tax consequences to each party is one factor that the court can consider when determining whether the maintenance award is fair. As such, you should discuss the tax implications of maintenance and child support with your attorney.