Maintenance and Mediation
New York State Domestic Relations Law provides that married spouses may ask a court to order financial support (maintenance) payable from one spouse to the other by filing the appropriate paperwork in Supreme or Family Court. Only married parties are entitled to ask the court for an order of maintenance. A court may order temporary spousal support while the case is pending (“temporary” maintenance) or after the divorce is finished (“Post-Judgment” maintenance).
A major purpose of maintenance is to maintain the parties’ pre-separation standard of living based on the reasonable needs of the party seeking maintenance and the ability of the other party to pay so as to provide time for the spouse receiving the support to become self-sufficient.
A judge can consider a number of factors in deciding whether to order maintenance. These factors include the age and health of the parties; the present or future earning capacity of the parties; the need of one party to incur education or training expenses; the termination of a child support award while temporary maintenance is being paid; the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration; the length of time that the parties lived together before the marriage or if they were separated before the divorce; if a party was prevented from maximizing earning capacity or obtaining meaningful employment; the availability and cost of medical insurance for the parties; the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibited a party’s earning capacity; the tax consequences to each party; the parties’ standard of living during the marriage; the reduced or lost earning capacity of the payee who delayed education, training, employment or career opportunities during the marriage; the equitable distribution of marital property including income from the assets; the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and any other just and proper factor.
The guideline amount of monthly maintenance is based on calculations using both parties’ incomes, with an income cap for the payor spouse (currently $192,000). A court has discretion to order maintenance using the payor’s income above the cap. Please consult with a tax advisor to ensure that the appropriate tax implications of a maintenance payment have been considered.
The duration of the payment of maintenance under New York law is based on a percentage of time depending on the length of the marriage, resulting in the termination of the payment of maintenance on a specific date The law sets frameworks for this determination but it is not a mandatory calculation. Maintenance will also terminate upon the remarriage of the recipient or the death of the payor.
Within the mediation process, parties can explore whether the statutory calculation for the amount of maintenance is best for their specific circumstances. Mediation also provides an opportunity for the parties to discuss and consider many options about the payment of maintenance, empowering the parties to craft an agreement that meets their present and future needs and avoids an uncertain result.