Are You Discussing Spousal Support
in Your Divorce?

Bikel Rosenthal & Schanfield New York Lawyers

Has the question of spousal support come up in your NYC divorce?

When couples separate, a divorce court may order spousal support. It’s important to understand what remedies may be available and what rights you may have under such an agreement.

A binding order for paying your ex-spouse, or receiving payments from your ex-spouse, may be one of the outcomes of your divorce. Spousal support, often referred to as alimony or maintenance, is determined by an examination of a host of factors unique to each couple.

Whether you consider yourself the “breadwinner” of the relationship, or work as a “homemaker” and are not otherwise employed, or your personal financial situation is roughly equal to that of your spouse or partner, accounting for spousal support can be crucial in any divorce situation.

It can have, in some cases, a permanent upward or downward impact on your finances.

Courts attempt to award spousal support in order to avoid divorces that would culminate in unfair financial situations for either party. Spousal support is not a safety net designed purely for either gender, specifically, and courts apply the same considerations to account for income disparities without regard to spousal gender.

How is temporary maintenance governed in New York?

Temporary maintenance in NY is governed by a formula. As part of a pending separation proceeding, a party can move the court to order temporary maintenance while the action is pending before it. New York has in place a law that courts must follow in determining the amount of any maintenance awarded in response to such a motion.

To carry out the temporary maintenance formula, courts will seek to learn:

  1. Which spouse is the higher earner;
  2. The amount of that spouse’s income (subject to an income cap, for the purposes of the formula); and
  3. The amount of the lower earner’s income.

Once this information is in hand, the court will award an amount according to one of two formulas:

  1. 30% of the higher income earning spouse’s income minus 20% of the lower income earning spouse’s income; or
  2. 40% of the spouses’ collective income minus the lower-earning spouse’s income. Of those two amounts, the lower result will be the controlling amount for temporary maintenance.

Is there an income cap for spousal support?

The above-referenced spousal support calculations are subject to a $184,000 income cap in New York. If you and your spouse’s collective income is greater than that cap, then courts will look to other factors to determine if deviating and increasing the cap is warranted.

Thus, if the outcome of the formulaic calculation can be credibly deemed to be either unjust or inappropriate, then the court can look to a range of other factors to adjust the guideline amounts of temporary maintenance.

Temporary maintenance may be based on:

  • The age and health of both spouses
  • The earning capacity of the spouses, as well as work history
  • The need for training and education expenses
  • The termination of a child support award during the period of temporary maintenance
  • Any wasteful dissipation of marital property (extending to transfers and encumbrances without a fair amount received)
  • Whether there was a premarital “joint household” or a pre-divorce “separate household”

These extra considerations for otherwise unjust or inappropriate temporary maintenance awards will be laid out explicitly by a court, which will hold hearings or seek filings from the parties. Capable counsel can assist with analyzing these complicated issues and help guide you through simpler temporary maintenance calculations.

We can help make expensive and stressful divorce proceedings more tolerable and assist you in reaching a fair status quo (interim) resolution until the proceedings reach their ultimate conclusion. Allow Bikel Rosenthal & Schanfield to counsel you in this process and tap into our experience in the field.

Can a maintenance award continue after my divorce is final?

Courts have until recent times followed a less-clear set of guidelines to calculate spousal support awards following divorce, once a temporary maintenance award (if any) is no longer in effect.

Before January 23, 2016, Courts analyzed some of the factors above and other, additional factors, to calculate a post-divorce alimony award. Since the enactment of the more recent guidelines (called DRL 236 B(6)), the same type of calculation is used as with temporary maintenance, above.

First, courts will look to whether the higher earning spouse (the “payor”) is also paying child support to the lower-earning spouse (the “payee”). If so, the guidelines once again look to the lower amount of two calculations:

  1. 20% of the payor’s income minus 25% of the payee’s income; or

  2. 40% of the collective income of both individuals minus 100% of the payee’s income. This will be adjusted in certain circumstances but should serve as a starting point or rule of thumb of post-divorce alimony awards in the context of child support payments.

If there is no child support agreement, then a similar calculation is used but the percentages are adjusted slightly.

The two calculations will be the lesser of:

  1. 30% of the payor’s income minus 25% of the payee’s income; or

  2. 40% of the collective income of both individuals minus 100% of the payee’s income.

If the higher earning individual’s income exceeds the income cap, then the calculation applies for the amount up to the cap and the remaining income falls to the court’s discretion for the application of other factors for consideration.

That is to say, the court has discretion to decide how to treat the income beyond the income cap so long as the court memorializes its decision in writing or on the record for the proceedings. This will apply to high net worth and high-income divorce proceedings and involves an an area of law in which a panoply of factors will affect the court’s decision.

Obtaining competent counsel for such a proceeding can help lay-out the case to assist the court, and accordingly reach a balanced and just spousal support award.

How long will spousal support awards last?

The spousal support, as a guideline, states that final spousal support awards shall be 15% to 30% times the number of years married.

While there are exceptions to this formula, generally, following a divorce, the court granting a spousal support award will expect the recipient spouse to, at some point, be able to support his or herself. That is, if education or training is needed, a maintenance award can last years. If other controlling circumstances mean that the receiving spouse will need much more time to get on their feet, then the duration of the award will be calculated accordingly.

For some specific circumstances, courts may grant a “nondurational” spousal support award. These are rare and often occur in the context of divorces occurring much later in life.

While the legal stand is relatively high, either spouse has the right to seek to modify the order for spousal support. That will typically trigger a review of the award under an unforeseen change in circumstances. Asserting such a request and obtaining a modification can be a delicate legal process. For such nuances, Bikel Rosenthal & Schanfield can help.

How the divorce and spousal support lawyers at Bikel Rosenthal & Schanfield will help you.

At Bikel Rosenthal & Schanfield, we can assist you in understanding how a court may calculate an alimony award, and the myriad factors it may consider. We have decades of experience assisting individuals with the stressors associated with divorce, and finances can often be the primary concern of our clients. Our experienced family law lawyers can help.

If you find yourself navigating pre- or post-divorce spousal support proceedings, the outcome can have a massive impact on your day-to-day life. Seeking competent counsel from the experienced divorce attorneys at Bikel Rosenthal & Schanfield can help.

We will walk you through what a court will need to know, help figure out what the impact of paying or receiving spousal support will be on your finances and help you protect your interests in the instance of a challenging proceeding.

If you are being ordered to pay spousal support, or if you believe you are entitled to spousal support,
contact Bikel Rosenthal & Schanfield today. We can help protect your interests.