How Spousal Maintenance Is Calculated in New York

New York stopped calling it alimony decades ago, but the question is the same: will one spouse have to support the other after the divorce, how much, and for how long. Since 2016 the answer starts with a formula. Here is how it works and where the real arguments are.

Maintenance is a formula first, a judgment call second

The Domestic Relations Law sets out guideline formulas for maintenance that the court must calculate in every case. The court can deviate from the guideline amount if it finds the result unjust or inappropriate, but it must explain why. In practice, the guideline number is the starting point for every negotiation and most settlements land close to it. The spouse with the higher income is the payor; the other is the payee.

Step one: determine income

Income for maintenance is defined the same way as for child support: gross income from the most recent tax return plus other sources, with deductions for certain taxes and for maintenance or support actually paid for other families. The court can impute income to a spouse who is voluntarily underemployed or whose lifestyle does not match the reported figures. As with child support, the fight over income is often the whole case.

Step two: apply the formula

There are two formulas, and which one applies depends on whether the payor will also be paying child support for the children of the marriage.

When the payor also pays child support: take 20 percent of the payor's income minus 25 percent of the payee's income, and compare it to 40 percent of the combined income minus the payee's income. The guideline amount is the lower of the two.

When there is no child support, or the payor is the custodial parent: take 30 percent of the payor's income minus 20 percent of the payee's income, and compare it to 40 percent of the combined income minus the payee's income. Again, the lower figure is the guideline.

If the result is zero or negative, the guideline maintenance is zero. Maintenance is calculated before child support, and the maintenance figure is then added to the payee's income and subtracted from the payor's for the child support calculation.

The income cap

The formula applies to the payor's income up to a statutory cap that is adjusted every two years and currently sits in the low to mid two hundred thousands. For income above the cap the court decides whether any additional maintenance is appropriate using the statutory factors, including the parties' standard of living, their ages and health, earning capacity, the need for education or training, the care of children, and wasteful dissipation of assets. In higher income Suffolk County cases, the above the cap analysis is where the money is.

Step three: how long maintenance lasts

The statute includes an advisory schedule for the duration of post divorce maintenance based on the length of the marriage:

• Marriages up to 15 years: maintenance for 15 to 30 percent of the length of the marriage
• More than 15 and up to 20 years: 30 to 40 percent
• More than 20 years: 35 to 50 percent

So a ten year marriage suggests roughly a year and a half to three years of maintenance. The schedule is advisory, and the court considers the same factors in deciding where in the range to land or whether to depart from it. Maintenance ends in any event on the death of either spouse or the remarriage of the payee, and the court may provide for it to end on the payee's cohabitation. Retirement age of the payor is also a factor.

Temporary maintenance during the divorce

While a contested divorce is pending, the less monied spouse can ask for temporary maintenance, often called pendente lite maintenance, calculated under the same formulas. A temporary award keeps the household running and is a frequent early motion in Suffolk County Supreme Court. It ends when the judgment is entered and does not bind the court on the final award.

Deviation and agreements

The court may deviate from the guideline amount or duration on the statutory factors. The parties may also agree to any maintenance arrangement they choose, or to none, provided the agreement states what the guideline amount would have been and that they are departing from it knowingly. A waiver of maintenance in a settlement agreement is final; a court cannot later award maintenance that was waived in a valid agreement.

Taxes

For divorces finalized after 2018, maintenance is not deductible by the payor and not taxable to the payee for federal purposes. New York State still allows the payor to deduct maintenance and requires the payee to report it on the state return. The mismatch affects the real cost of a maintenance award and should be part of any negotiation.

Modifying maintenance after the divorce

Court ordered maintenance can be modified on a substantial change in circumstances. Maintenance set by a settlement agreement is harder to change; the standard is extreme hardship unless the agreement itself allows modification. This is one reason the terms of the agreement, including whether maintenance is modifiable, deserve careful attention before signing. For how maintenance fits with the rest of the financial picture, see the firm's child support and spousal maintenance page.