NYC Temporary Maintenance and Spousal Support Lawyers
Temporary Maintenance and Spousal Support Attorney NYC
Our firm routinely is called upon to either obtain or oppose obtaining temporary maintenance (formerly alimony) during a divorce. During a divorce, the court is called upon to render a calculation, based upon the 2010 amendment to Sec. 236 of the Domestic Relations Law, as to an amount of money to be paid by one spouse to the other spouse. This is additional to child support, and as one can imagine, a cauldron for litigation. The New York Unified Court System has an online calculator you can use, but it is not a substitute for legal advice, but may assist in completing the Maintenance and Child Support Worksheets (see https://qfs.formsquo.com/FormsViewer/View?SPHostUrl=https%3A%2F%2Fnycourts.sharepoint.com%2Fsites%2FMatrimCalc&SPLanguage=en-US&SPClientTag=1&SPProductNumber=16.0.8613.1223&SPAppWebUrl=https%3A%2F%2Fnycourts-1cee1e08ae8e41.sharepoint.com%2Fsites%2FMatrimCalc%2FFormsViewer&templateName=MatrimonialCalculator&AppOnly=true
This monthly monetary contribution is referred to as New York’s temporary spousal support. In legal terms, NY’s temporary maintenance is a form of pendente lite (“awaiting the litigation”) relief. The court can always order temporary maintenance payments during a divorce unless the spouses had previously signed a valid prenup stating that temporary maintenance would not be allowed in case of divorce.
New York’s Temporary Maintenance and Spousal Support Statute
New York’s law for temporary maintenance is established by the Domestic Relations Law Section 236 Part B(6)(a). New York ‘s spousal support law provides general standards that govern when and how temporary spousal support and maintenance should be awarded during the divorce action:
“the court may order temporary maintenance or maintenance to meet the reasonable needs of a party to the matrimonial action in such amount as justice requires, having regard for the circumstances of the case and the respective parties. In determining reasonable needs the court shall decide whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other.”
The NY temporary maintenance statute delineates these following specific factors the court is to use when deciding whether or not to award temporary maintenance to one spouse:
- the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
- the duration of the marriage and the age and health of both parties;
- the present and future earning capacity of both parties;
- the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
- reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
- the presence of children of the marriage in the respective homes of the parties;
- the tax consequences to each party;
- contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
- the wasteful dissipation of marital property by either spouse;
- any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
- the loss of health insurance benefits upon dissolution of the marriage; and
- any other factor which the court shall expressly find to be just and proper.
The court must state which of the above factors it has considered when deciding on temporary maintenance to a NY spouse involved in a divorce. New York City’s temporary maintenance request to a divorce court must consider those factors, and in fact, there is now a mathematical formula used to calculate the presumptive award of temporary maintenance. The formula takes into account both parties’ incomes to calculate the award to be payed by the spouse with more money to the spouse with less money.
Gordon Diefenbach has argued for and against spouses seeking NY temporary maintenance, and the NY courts are allowed to deviate from this mathematical formula but must state its reasoning in writing by way of a Decision/Order.
The NY Divorce Court’s Use of the Temporary Maintenance Statute
The purpose of New York’s spousal support statute is to ensure that the spouse who earns less is supported through the divorce proceeding until a permanent alimony order is issued by the judge at the completion of the divorce. The driving force behind temporary maintenance is financial need; when a spouse cannot make a showing of financial need, that spouse cannot receive temporary maintenance from the other.
The mathematical formula approach for calculating the temporary alimony award should theoretically lead to the amount that would cover the presumptive reasonable expenses of the spouse leaving the marriage with less money. The calculations for temporary alimony are based on gross income, not net income, because net income can be more easily manipulated.
Although temporary maintenance calculations in New York come from the mathematical formula, our experience is that courts do not always strictly adhere to the formula. For example, in a New York case where the calculations indicated that the wife should receive $9,571 per month from the husband in temporary maintenance, the court found that the amount should be reduced to $3,000 because the wife had maintained her own household separate from her husband for three and a half years before the divorce.
The goal of temporary maintenance is to allow both spouses to maintain the standard of living they were accustomed to as a couple before the divorce; therefore, a high pre-divorce standard of living could result in large temporary maintenance payments when the incomes of the parties are lopsided.
Gordon Diefenbach has significant experience in navigating the New York temporary maintenance case law.
