Maintenance was once called alimony. It is defined as the payment of money from one spouse (or a former spouse) to the other spouse. The purpose of maintenance is to ultimately allow the recipient to gain skills or training to become financially self-sufficient.
Maintenance may be awarded to either spouse without regard to gender. Since October 2010 the Court uses a statutory formula and the following factors to determine if you are eligible for maintenance:
- the income and property of each of us including the martial property distributed pursuant to this agreement;
- the length of the marriage;
- the age and health of both of us;
- the present and future earning capacity of both of us;
- the need of one or both of us to incur education or training expenses;
- the existence and duration of a pre-marital joint household or a pre-divorce separate household;
- acts by one of us against the other that have inhibited or continue to inhibit the earning capacity or ability of one of us to obtain meaningful employment, including acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
- the ability of the person seeking maintenance to become self-supporting and the period of time and training necessary for that to occur;
- the reduction or lost lifetime earning capacity of the person seeking maintenance as a result of having foregone or delaying education, training, employment, or career opportunities during the marriage;
- the presence of children of the marriage in the respective homes of each other;
- the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit one of our earning’s capacity;
- the inability of one of us to obtain meaningful employment due to age or absence from the workforce;
- the need to pay for exceptional additional expenses for our children, including but not limited to, schooling, day care and medical treatment;
- the tax consequences to each of us;
- the equitable distribution of marital property;
- the contributions and services of the person seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other person;
- the wasteful dissipation of martial property by either of us;
- the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
- the loss of health insurance benefits upon the dissolution of the marriage, and the availability and cost of medical insurance for each of us; and
- any other factor which we expressly find just and proper.
Generally, the most important factors in determining maintenance are the length of the marriage and the income of the spouses. However, if a marriage is five years or less, it is unlikely that one would receive maintenance.
Maintenance awards can be durational or non-durational.
Durational maintenance is for a fixed period of time. This is based on the idea that a receiving spouse will become self-supporting after a period of time and is the most common type of maintenance. In marriages of ten years, the maintenance is usually for five years.
Non-durational maintenance, also called lifetime maintenance, is paid for the supported spouse’s lifetime. While rare, this occurs when one spouse is older, unlikely to find employment, or has an illness. Maintenance will automatically terminate when the receiving spouse is remarried or the paying spouse dies.
Maintenance payments may end if there is proof that the receiving spouse is habitually living with another person holding themselves out as husband and wife.
Need help with determining maintenance in your divorce? Contact Jerry Fabiano today.
Image source: “At the Vermont state fair, Rutland” (Delano, Jack, photographer, 1939) The Library of Congress in Flickr Commons