In New York, maintenance is granted through temporary spousal maintenance or post-divorce spousal maintenance. Maintenance, or alimony, in New York is based on several factors. Temporary maintenance is the amount of funds that will be paid to the spousal while the divorce is pending, and post-divorce maintenance takes effect after the divorce is finalized.
In January of 2016, a spousal maintenance law was passed in New York, which had a significant impact on post-divorce and temporary maintenance. Before the new law was passed, only temporary spousal maintenance was determined with a calculated formula, but because of the new law post-divorce spousal maintenance now uses the same formula to determine the amount to be paid. However, the law states the formula is to be used a guideline, so if calculations are considered inappropriate, they can be adjusted by a judge.
The formula that is used to calculate maintenance can be difficult to grasp, but there are a few key factors that those going through a divorce should be aware of:
There are two formulas that are used to calculate maintenance. The first formula is used when the spouse who will pay maintenance is also paying child support, and the other is used when the spouse is not paying child support. The formulas are designed so a spouse paying child support will pay a lower amount than a spouse who isn’t paying child support.
The maintenance formula does have an income cap. If an individual makes more than $175,000 annually, then only $175,000 will be used in the formula. However, the income cap may change every few years based on cost of living. In most cases, when an individual’s income is greater than $175,000, the court will use the formula and then grant additional support.
Temporary maintenance will end when the divorce is final or if either spouse dies. However, temporary maintenance may end before the divorce is finalized, which occurs in divorces that are taking longer than usual. In addition, it is important to note the court may not grant temporary maintenance at all, so it is best to have a family attorney present during proceedings.
If both spouses submit a written agreement, they can chose to disregard the temporary and post-divorce formula. In these circumstances, the spouses will agree on an amount and time that would follow their own guidelines.
The time that post-divorce maintenance will be paid is also determined by using a specific formula. The formula states if the length of marriage was less than 15 years, the time will range from 15%-30% of the duration of the marriage. If the marriage was between 15 and 20 years, then maintenance will be 30%-40% of the duration of the marriage. Maintenance will be between 35%-50% of the length of marriages that lasted more than 20 years.
However, it is important to remember the time formula is only a guideline. A judge may adjust the amount of time maintenance is to be paid based on several factors such as medical conditions, job opportunity, and more.
There are many factors that must be taken into account with maintenance including:
When a couple divorces, the spouse that had insurance coverage for the other spouse will no longer be able to provide insurance coverage. Courts may award additional maintenance to cover health insurance costs.
The court will use income and property to determine maintenance. When one spouse owns property, it is required the court considers the value of the property when granting maintenance. One example would be if a spouse who is requesting maintenance support also received a large inheritance, the amount that is granted will typically be lower.
The future earning ability of each spouse will also be considered by the court. Not only will the court look at the present income of each spouse, they will also account for future earnings. When a spouse has the ability to eventually gain employment or receive education, which would lead to employment, maintenance will be shorter. In contrast, when a spouse is not able to be self-sufficient, maintenance will be adjusted to meet the needs of his or her financial limitations.
Those who are going through a divorce should seek guidance from a family law attorney who has experience with maintenance proceedings. A family law attorney has the knowledge that is needed to ensure his or her client’s rights are protected.
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