For an individual that finds him or herself in a situation where divorce is imminent, it is important to understand what to expect from the proceeding. One of the most controversial topics, because there is not a lot of statutory guidance on the topic and often the result is left to the court's discretion, is spousal maintenance, otherwise known as alimony.
The purpose of an alimony or maintenance award is to help the receiving spouse become financially independent both during and after a divorce. Once a case for alimony has been established, the courts will then decide the amount to be awarded and its duration.There are several areas the courts will consider in this decision including who the payor will be, as well as what type of alimony it will be (i.e. temporary, periodic or lump sum).
First, the courts must determine which spouse, if any, will be obligated to pay support. Support is often awarded when there is a large gap in earned income, with the higher-earning spouse being required to pay alimony or maintenance (designed to ensure the lower-income earner is able to 'maintain' the same standard of living he or she became accustomed to during the marriage).
If this is your situation
Stop reading. Start defending.
When determining the individual's ability to pay spousal support and the amount to be awarded, the court will come up with a figure for net income. This usually involves calculating gross income from all sources including wages, public benefits, interest and dividends on investments,property rentals, and any other sources of income, less any mandatory deductions such as income taxes, Social Security, and health care. The result is the payor's net income. The court will then use a formula, outlined in New York State Maintenance Statutes (Domestic Relations Law 236; Part B: Subsection 5-a) to come up with a figure for the maintenance award.
Second, once the court has determined who the payor is and the amount of maintenance to be awarded, it must decide on the duration of time the recipient is to be paid alimony or maintenance. Maintenance can be awarded for a temporary period of time, long-term, or in periodic or lump sum payments. Some of the factors the court considers in its determinations are 1.) whether the couple has children and the amount of child support to be paid (in some situations, the court may determine it would be too much of a financial burden for the payor to have to pay both child and spousal support and will elect to forego the alimony obligation), 2.) the ability of the recipient to earn or become self-supporting, 3.)length of the marriage, and 4.) any other factor the court finds to be just and proper. Again, the details of these parameters can be found in New York State Maintenance Statutes (Domestic Relations Law 236).
Additionally, there are specific situations in which the maintenance award will end automatically including the death of either party, the remarriage of the receiving party, a date specified in an agreement between the parties, or a date determined by the court. The court may also decide to deem the alimony either modifiable (under certain conditions) or non-modifiable (cannot be changed once established).
In conclusion, there are a multitude of factors and circumstances that go into determining the amount and duration of an alimony award and whether it is even awarded at all. Ultimately the fate of the parties is in the hands of the court, which makes it extremely important for a divorcing individual to know his or her rights. This often involves hiring appropriate legal counsel. There are many firms that will offer a free consultation, which, based on the life-changing importance of the court's decision, every individual in this situation should utilize.