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Alimony

Alimony is paid by the “monied” breadwinner spouse to the spouse who earned less during the marriage is sometimes called Alimony, Spousal Support or Maintenance.

In New York and New Jersey, alimony is referred to as maintenance.

Generally, alimony is the financial support required to be provided by the high earner spouse after divorce to the lower-earning spouse for a specific period of time, intended to continue keeping the lower earning spouse in the same lifestyle they got them accustomed to during the marriage with their high earning spouse  

The idea behind alimony is to give a stay-at-home mom or dad getting out of a marriage to a breadwinner their own chance to get back to the workforce and get on their feet. 

Alimony is not just for Celebrities or People with Luxurious Lifestyles

  • The test for a court award of alimony is usually based on the length of the marriage and the difference between the parties’ earnings.  Also important are the parties’ potentials for earning.
  • The courts focus their analysis for alimony on reviewing the last 3 years of tax return reported earnings and if the difference in incomes was significant throughout the last few years of the marriage (or even during the whole marriage).
  • The courts also look to see if the payee (spouse looking to receive the alimony) has professional education, degrees and experience that would allow them to start making the big bucks all by themselves sooner rather than later.
  • People who were married for a long time end up getting alimony for longer periods of time post-divorce. Furthermore, if the payee can prove that the high earning spouse has higher earning potential that may be showing up in the tax returns, there is room for argument that higher alimony should be paid or to be paid for a more extended period of time. There are many factors that go in to the court’s analysis for temporary and permanent alimony calculations. 

New York State has moved away from case-by-case approach to alimony awards and enacted laws dictating a formula for maintenance calculation in 2015.

On June 24, 2015, the NY State Senate passed Bill A7645-2015 relating to duration and amount of temporary alimony and post-divorce alimony in NY State, which later that year became official law. 

The NYS Legislature did away with dividing up the enhanced earning capacities of spouses arising out of professional degrees or licenses obtained in a marriage when dividing up marital property.  This law also created a clear formula for alimony calculation.

The new NYS Formula lowered the cap on the higher-earning spouse payor’s income to $175,000 for purposes of alimony calculation for both temporary and post-divorce alimony.  The formula further created two ways of calculating alimony, one for where there is child support to consider and one without child support. 

What is the NY Alimony Formula?

Different formulas apply depending on whether the payor of alimony will also be paying child support.

ALIMONY + CHILD SUPPORT FORMULA

1.With child support where the maintenance payor is also the non-custodial parent for child support purposes:

  •  subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income;
  • multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result;
  • the lower of the two amounts will be the guideline amount of maintenance; maintenance payor is the custodial parent for child support purposes:
  • subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income;
  • multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result;
  • the lower of the two amounts will be the guideline amount of maintenance.

        Maintenance gets calculated first. Child support is then calculated using the income of the pay or after subtracting maintenance to be paid and the income of payee income including maintenance received.

The court may adjust the guideline amount of maintenance up to the cap of $175,000 where it finds that the guideline amount of maintenance is unjust or inappropriate after consideration of one or more factors, which are to be set forth in the court’s written or on the record decision. This leaves some discretion to the courts, still.

Where there is income over the cap, additional maintenance may be awarded after consideration of one or more factors, which are to be set forth in the court’s decision or on the record.

2. When determining temporary maintenance, the court can allocate between the parties the responsibility for payment of family expenses” while the divorce action is pending.

3. The definition of income for post-divorce maintenance will include income from income-producing property that is being equitably distributed.

4. New factors in post-divorce maintenance will include:

  • termination of child support,
  • income or
  • imputed income on assets being equitably distributed, etc.

5. The duration of post-divorce maintenance is a function of a formula that includes ranges of different percentages of the marriage length depending on how long the marriage lasted:

  • for marriages of zero to 15 years, maintenance would be awarded for 15% to 30% of the length of the marriage;
  • for marriages of more than 15 up to 20 years, maintenance would be awarded for 30% to 40% of the length of the marriage;
  • for marriages of more than 20 years, maintenance would be awarded for 35% to 50% of the length of the marriage.

However, nothing prevents the court from awarding non-durational, post-divorce maintenance in an appropriate case.

6. In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age.

7. Actual or partial retirement will be a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income.

Even with the statutory formula, you will need an experienced family and divorce attorney who deals in matrimonial matters on a daily basis to calculate the proposed alimony amount and then get the other party to agree to your calculations.  Spouses often disagree about the discretionary things that the courts take into account when applying the formula whether to increase or decrease the calculated amount and deviate from the cold calculation. 

 

ALIMONY VS. CHILD SUPPORT

  • Alimony is not to be confused with child support. 
  • Child support is the financial support only for the children.    
  • Alimony, instead, is meant only for the support of the lower-earning spouse post-divorce.  Alimony is only for the lower-earning spouse.
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