Spousal Maintenance – the payment of money from one spouse (or former spouse) to the other spouse (or former spouse). The purpose of maintenance is to ultimately allow the party receiving the maintenance to become financially self-sufficient. You can receive maintenance at the same time as child support, however, the amount you receive in maintenance can and probably will reduce how much child support you receive.
Maintenance may be awarded regardless of gender. A request for maintenance must be made in your Complaint or Answer.
In deciding whether you are eligible for maintenance, the Court considers the following factors:
- The income and property of the respective spouses, including marital property distributed pursuant to equitable distribution.
- The duration of the marriage
- The age and health of the respective spouses
- The present and future earning capacities of both spouses
- The ability of the other person seeking maintenance to become self-supporting
- Whether there is a reduced or lost earning capacity of the person seeking maintenance, which resulted from forgoing or delayed training or employment during the marriage
- The presence of children of the marriage in the respective homes of the spouses
- The tax consequences to the parties
- Other contributions and services of the spouse seeking maintenance
- Whether either spouse has wasted the marital assets (also known as wasteful dissipation of marital assets)
- Transfers made by a spouse in contemplation of the divorce action at below-market value
- Any other factor the Court determines as being relevant
- Once the divorce action has commences, your attorney can file a motion requesting a temporary award of maintenance, called a “pendent lite” request.
- If you are awarded temporary maintenance, this does not necessarily mean you will be awarded maintenance after the divorce is final. A final maintenance award can only be determined at the conclusion of a divorce and must be based on the above listed factors.
- Regardless of the terms of the maintenance, it will automatically terminate upon the following events:
- The receiving spouse is remarried
- The paying spouse dies
Calculating Temporary Maintenance:
Temporary Spousal Maintenance is calculated by taking the lower of the following options:
- 30% of the higher earning spouse’s income, up to the income cap (currently $524,000) minus 20% of the lower earning spouse’s income.
- 40% of the combined income of both spouses, minus the income of the lower earning spouse.
This calculation only applies to the first $524,000 of a spouse’s income. If the higher earning spouse makes more than $524,000, the above mentioned factors will be considered by the court in calculating temporary maintenance.
If either spouse thinks the temporary maintenance award is unfair, he or she can ask the court to change it based on DRL §236 Part B (5-A)(a)(1).