When a couple divorces it can leave one spouse better off than the other. This can lead the struggling spouse to have trouble paying bills or even covering the basics like food, shelter, and clothing. In those cases, the court may order the ex to pay spousal support or maintenance.

Under New York divorce law, there are provisions for a spouse to receive financial support from their partner. While the couple is still married it is called “spousal support,” and once the couple is going through a divorce it is called “maintenance” (some people still use “alimony,” but it is not legally accurate). The intention is that the spouse is able to maintain a lifestyle that allows them to meet their own reasonable needs.

How does spousal support work in NY?

There are two different times that a spouse can be awarded spousal support from their partner or ex-partner.

  • The couple is married – If the couple is currently married to each other, the financial support that one partner receives from the other partner is referred to as spousal support. There is no limit to how long one spouse pays spousal support to the other as long as they are married.
    • Family court is where the petition for spousal support is filed and Family Court does not have a filing fee. An individual can use the same petition for spousal support and child support.
    • Service to the other party is required and they receive a petition, a summons, and a financial disclosure form.
    • The petitioner is the person who filed the petition, and the other person is the respondent. Each party has the right to hire their own attorneys. If one party cannot afford an attorney the court may assign a pro bono lawyer.
  • The couple is divorced or divorcing – If the couple is divorcing or already divorced from each other, the financial support that one partner receives from the other partner is referred to as maintenance.
    • The New York Supreme Court decides maintenance during the couple’s divorce case
    • If one of the partners already has an order from Family Court for spousal support that was filed before the divorce case was started and is still in effect, the spousal support will continue through the divorce proceedings and end when the judge signs the final judgment of divorce. However, if the judgment of divorce orders the spousal support to continue as maintenance, then it will make a transition.

How long do you have to be married to get spousal support in New York?

In New York, it doesn’t matter how long a couple was married in order for one of them to be awarded spousal support. While the length of the couple’s marriage can help with determining the amount of the payments, it does not affect whether or not a person gets it from their spouse or ex-spouse. More often, maintenance is awarded to a person when their spouse’s income is significantly higher. It is intended to help the spouse who has a lower income become more financially stable and independent.

What are the grounds for maintenance in NY?

Anyone going through a divorce can ask for maintenance from their ex-spouse. It doesn’t matter if they were married for 3 days, 3 years, or 30 years. There are two factors that the judge will take into consideration when determining whether to award maintenance or not:

  • The needs and resources of the spouse who is asking for the support
  • The other spouse’s financial ability to provide the financial support

What is the formula for spousal support in NY?

The formula for spousal support for couples without children requires two calculations, then a comparison of those two figures to determine the amount of maintenance.

  • Part 1
    1. 20% of the net income of the lower-earning spouse
    2. 30% of the net income of the higher-earning spouse
  • Part 2
    1. Combined income of both spouses
    2. 40% of the combined income
    3. Subtract the net income of the lower-earning spouse

Compare Part 1 and Part 2. The lower of the two numbers will be the annual maintenance amount. Divide that amount by 12 and that is the monthly payment.

How long can a divorced person get maintenance in New York?

There are guidelines in place for how long support payments can last. If the couple is married, there is no time limit. If the couple is divorcing, the judge can set limits for how long the spouse is required to pay maintenance. There is a formula that provides some guidance, although ultimately it is at the discretion of the judge:

  • 0 to 15 years: 15% to 30% of the duration of the marriage
  • 15 to 20 years: 30% to 40% of the time of the marriage
  • 20+ years: 35% 50% of the time of the marriage

Other factors may also influence the length of time maintenance is paid. There are no restrictions regarding what can be used to make the determination. This is especially true in cases that are higher income.

If the former spouse of the recipient gets remarried, or if either spouse dies, the payments will end.

Can a partner ask for maintenance if they are earning wages or have an income?

A partner can ask for alimony or maintenance even if they have an income. When maintenance is ordered in a divorce, the lower-income spouse is the recipient of the maintenance and the higher-income spouse is the one who pays.

Does cheating affect maintenance in NY? 

When awarding maintenance in a divorce, the court typically does not recognize marital fault, including adultery. This means that if the higher-earning spouse cheats while the couple is married, he or she is no more likely to be ordered to pay maintenance than if they had been faithful. By the same token, if the lower-income spouse is unfaithful while the couple is married, that person may still be awarded maintenance.

No cheating does not guarantee that maintenance will be awarded or ordered. Egregious conduct by either party is largely irrelevant most of the time. It does not affect the former spouse’s entitlement to maintenance and it has no impact on the amount.

How do you avoid maintenance in NY? 

Sometimes paying maintenance to a former spouse presents a financial hardship for the paying spouse. As they are trying to move on and build a new life after a divorce, the lack of funds could make it difficult. This is why some people try to head off these difficulties by finding ways to avoid paying maintenance or spousal support.

  • Sign a prenuptial or postnuptial agreement
  • Prove that the former spouse does not need maintenance payments
  • Negotiate with the former spouse to give assets in place of maintenance payments
  • Live within a reduced means
  • File a fault divorce – NOTE: There is no law that says or suggests that an at-fault spouse is not eligible to receive maintenance payments. However, many times the court is hesitant to order a spouse to pay support to the spouse who is accused of contributing to or causing the breakdown of the marriage. Your divorce attorney can tell you if this is a viable solution.

If you are considering divorce or going through a divorce, there’s a lot to consider. Maintenance payments are just one of the many things you have to look at as you move to this new chapter of your life. An experienced, compassionate, talented attorney can help you navigate the complex legal system and ensure that your rights are protected.

Call the Litvak Law Firm at 718-989-2908 today and talk to one of our attorneys to find out how we can help you with your divorce.