How Is Spousal Maintenance (Alimony) Determined?

By Michael DiFalco

Spousal maintenance, spousal support, and alimony all refer to the same concept. When a couple divorces or separates, the parties will often have a disparity in economic situations. A court can order spousal maintenance so each person can meet their expenses each month.

Here are some of the considerations that go into determining spousal maintenance in New York.

Spousal Maintenance (Alimony) Determinations in New York

Judges do not award spousal maintenance in every divorce or separation case. Instead, the judge in your case must analyze the following issues before ordering spousal maintenance.

Is spousal maintenance appropriate in these circumstances?

The answer to this question depends on the stage of the proceeding and the incomes of each of the parties. Courts award two types of spousal maintenance:

Temporary Maintenance

Judges will award temporary maintenance during the divorce proceeding if certain conditions are met. These conditions depend on the relative income disparities between the divorcing or separating spouses.

If you and your spouse have approximately the same income, neither party will receive temporary maintenance. If there is a significant difference between your incomes, the higher-income spouse will likely pay temporary maintenance to the lower-income spouse.

The reason for temporary maintenance is to address the immediate economic issues faced by divorcing or separating spouses. 

Temporary maintenance ensures that the monthly mortgage, rent or other expenses are paid and that the lower-earning spouse has sufficient means to meet their daily needs for personal expenses.

Post-Divorce Maintenance

A court must order post-divorce maintenance at the end of the divorce under certain conditions. Again, these conditions depend on each party’s income.

Judges use the same formula to calculate post-divorce maintenance as temporary maintenance. The judge must also determine how long the post-divorce maintenance order should last. 

Maintenance is supposed to be “rehabilitative” meaning that it should be paid for a period of time post-divorce to enable the recipient to become “self-supporting”. 

The lower-income spouse may need maintenance while:

  • Looking for a job
  • Recertifying prior training
  • Getting an education
  • Receiving job training

How much spousal maintenance should the court order?

New York’s legislature acted in 2015 to make spousal maintenance orders more uniform in New York divorce and separation cases. Before 2015, orders for spousal maintenance could vary widely. In the 2015 law, the legislature implemented a set of rules to calculate a guideline amount for temporary and post-divorce maintenance.

Under these rules, the calculation varies depending on whether the couple has minor children. If they do, the judge uses a different formula. This guarantees that the non-custodial parent will not get hit with both child support and maintenance since the purposes of these support orders overlap–they are both intended to cover shelter and food costs for the family.

If the couple has no children or the higher-earning parent is the custodial parent, the court subtracts 20% of the lower-income amount from 30% of the higher-income amount.

If the couple has children and the higher-earning parent is the non-custodial parent, the court subtracts 25% of the lower-income amount from 20% of the higher-income amount.

To account for cases where the parties’ incomes are within 33 1/3% of each other, the court also subtracts the lower-income amount from 40% of the combined income. Spousal support only starts when there is more than a 33 1/3% difference in income.

The court then uses the lower guideline amount of the two calculations that apply to the couple’s situation.

Should the court modify the amount calculated?

New York law does not deprive judges of all discretion. If the judge finds that the guideline amount gives an unjust or inappropriate outcome, the judge can adjust the amount or duration of the spousal maintenance.

Some factors a judge can consider include:

  • Age and health
  • Earning capacities
  • Education or training expenses
  • Wasted marital property
  • Acts by one party to keep the other from employment
  • Cost of medical insurance
  • Time spent caring for relatives
  • Standard of living of the parties during the marriage
  • Lost or delayed education, training, employment, or career opportunities during the marriage
  • Property distribution
  • Contributions as a homemaker and to the career of the other party

One of the major factors the courts consider, particularly on a temporary basis, is the allocation of carrying charges for the marital residence. If one party is paying the mortgage, taxes, insurance, utilities, and other expenses like car payments, that will impact the way the court analyzes the appropriate amount of temporary maintenance.

The judge can adjust the spousal maintenance award by explaining the factors that influenced the outcome.

Have questions about alimony?

To speak to a family law firm in Garden City, NY, about the spousal maintenance likely in your case, contact Aiello & DiFalco for a consultation.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.