New York Divorce Law...

New York Law - What Factors Affect the Spousal Maintenance Amount?

Here are the factors the court considers in granting spousal support:

• Standard of living of the parties.
• Ability of the payer to pay.
• The parties' reasonable need under the circumstances.
• The income and property of each party.
• The duration of the marriage.
• The age and health of both parties.
• The present and future earning capacity of both parties.
• The ability of the party seeking maintenance to be self supporting; how long that will take and what training will be required.
• Reduced or lost lifetime earning capacity as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage.
• The presence of children in the respective homes of the parties.
• The tax consequences to each party.
• The contributions as parent, wage earner, homemaker, and to career or career potential of the other party.
• The wasteful spending of marital property by either spouse.
• Any giving away of marital property before the divorce filing.
• Any other factor which the court finds, in writing, to be appropriate.

In marriages of long duration there is a trend to having spousal maintenance continue until retirement, with pension benefits picking up at that time.

Section 236.

Cases:

Hartog (1995) 623 NYS2d 537 (The standard of living before divorce is the preeminent factor, especially in marriages of long duration. In this case, the court upheld an award of lifetime maintenance of $2,816 per month to an older spouse in a marriage of 23 years).

McGarrity (1995) 622 NYS2d 521 (The husband, age 59 at trial, was earning approximately $300,000 a year as a VP of Sales and Marketing. The wife was working as a social worker, earning $32,000. The parties had been married 30 years and had raised three children, all of whom were on their own by the time of the trial. The court awarded the home, worth $180,000 to the wife. The home had monthly expenses of approximately $1,000 per month. The wife also received $323,450 of her husband's profit-sharing plan. The court awarded maintenance until the later of the date the husband retired or the date he turned age 65 in the amount of $30,000 a year ($2,500 a month).)

Anglin (1989) 538 NYS2d 668 (The parties were divorced after 29 years of marriage and three children, all of whom were on their own by the time of this appeal. The husband was earning approximately $53,000. The wife was earning approximately $17,400. The marriage had broken up because of the husband's verbal and physical abuse of the wife. Also, husband had been so frugal during the marriage, that even at this disparity, wife had a higher "standard of living" than she did during the marriage, and was able to buy herself a new car. Under these circumstances, the court ordered maintenance of $635 a month for eight years, until the husband's retirement.)

Maloney (1988) 524 NYS2d 758 (After sixteen-year marriage, wife was "reasonably young," and employed earning $17,500, apparently as a teacher. Wife also received almost $680,000 over 10 years as her equitable share of her husband's medical license. The children spent about half their time with each parent. The husband will pay virtually all the children's expenses, including education, clothing, recreation, and allowances. Thus, no permanent maintenance was ordered. Also, no child support was ordered.)

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