Divorce Law: Who Gets Alimony in a Divorce?

Alimony is payments made by one former spouse to the other during or after a divorce. Most states now use the term maintenance or spousal support to refer to this. New York has specific guidelines governing spousal support payment after a divorce.

Who Is Entitled to Maintenance?

Maintenance is considered only for the non-moneyed spouse, the one who earns less or has the fewest assets upon leaving the marriage. The higher-earning spouse or spouse with more assets is almost never entitled to seek maintenance. However, there is no guarantee that the non-moneyed spouse will be entitled to maintenance, as it is decided on a case-by-case basis.

What Is the Purpose of Maintenance?

Maintenance is usually ordered to help one spouse get back on their feet financially after a divorce. It is intended to be short-term and rehabilitative in the sense that it assists the non-moneyed spouse in obtaining education, training, or experience to become self-supporting. It is also ordered to place the couple on equal economic footing after the divorce and ensure that the non-moneyed spouse does not see a drastic decrease in their standard of living.

Maintenance is not intended to be punitive. It is ordered only to benefit the non-moneyed spouse, not to punish the moneyed spouse. It also is not directly tied to behavior during the marriage, such as infidelity or abuse. It is not meant to compensate a spouse for those situations they may have endured. Maintenance is ordered for the sole purpose of providing a financial transition for the non-moneyed spouse.

That being said, judges have discretion when determining how much maintenance to order in a divorce. If the moneyed spouse has acted in bad faith, behaved egregiously, and has made the court process difficult, it is within the realm of possibility that a judge might order more maintenance than in comparable cases because the situation has irked them. On the flip side, a judge might see the non-moneyed spouse in a very negative light, which could skew the maintenance order to be lighter than it might be in other situations.

How Much Is Maintenance?

New York state does not have a set amount or formula for determining how much maintenance is payable. Instead, the court considers a variety of factors when ordering maintenance, including:

  • The current and future income of each spouse
  • Separate property owned by the spouses
  • How marital property is divided between the spouses
  • The non-moneyed spouse’s ability to become self-supporting and the resources needed to achieve that benchmark
  • The health and age of both spouses
  • How long they have been married
  • Whether they share minor children and what the custody plan is
  • Whether the non-moneyed spouse had a loss of income related to staying home with the couple’s children or supporting their spouse’s education or business

These factors make it clear that judges have the opportunity to set an amount they see as fair in your particular case. Because of this, it is crucial that you work with an attorney skilled in complex maintenance matters in high-profile divorces.

How Long Is Maintenance Payable?

Maintenance can be temporary, for a set time period, or lifetime.

  • Temporary maintenance is an amount set while the divorce case is pending and is payable until the case is resolved and an order of maintenance is made with the divorce decree. It is meant to be short-term until a final determination can be made.
  • Regular maintenance is ordered at the conclusion of the divorce and lasts for a set period of time. In New York state, this is usually for one-third of the length of the marriage (so if a couple was married 15 years, five years of maintenance would be ordered). However, marriages of less than ten years may receive slightly less than one-third the length, while extended marriages could receive an order for longer than one-third.
  • Lifetime maintenance is ordered to last until one of the spouses is deceased. It is usually only used in cases where the non-moneyed spouse is chronically ill or aged. There is no opportunity for the spouse to become self-sufficient in those situations, so maintenance is ordered to continue until one is deceased.

Maintenance automatically ends in the following situations:

  • If either spouse dies
  • When the time period for maintenance in the order expires
  • If the spouse receiving maintenance remarries (unless the order specifies otherwise)
  • If the spouse receiving maintenance cohabitates with another partner, if the order specifies this will end the maintenance

Can Maintenance Be Changed?

An order of maintenance can be later modified by the court if:

  • More than three years have elapsed since the order was entered,
  • There is a substantial change in circumstances,
  • Either spouse’s income has changed (up or down) by a minimum of 15 percent since maintenance was ordered; or
  • The spouses reach an agreement to modify maintenance

The spouse seeking the change carries the burden of proof and must convince the court that a change is necessary.


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

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