Post Divorce Maintenance for Divorces Commenced Prior to January 23, 2016
By J. Douglas Barics
Revised August 2019
For divorce actions commenced prior to January 23, 2016, the court will use the prior law to determine maintenance. Under the old DRL 236 (6), the decision whether or not to award maintenance, the amount of maintenance if awarded, and the duration were all entirely within the court's discretion.
In exercising its discretion, the court was bound to consider one or more of the twenty factors listed in the old DRL 236 B(6). For actions commenced prior to the effective date of the new law, these twenty factors still apply.
Factor 1: The income and property of the respective parties including marital property distributed pursuant to subdivision five of this part.
Old DRL 236 B(a)(1)
The income of each party will naturally be a consideration, the less the income, the greater the need for maintenance, especially of the other spouse's income is significantly greater. All property, including the nature of the property will be considered as well. Income producing property or a distributive award of a pension may reduce the need for an award of maintenance.
Factor 2: The length of the marriage.
Old DRL 236 B(a)(2)
The length of the marriage by itself will not determine whether or not a final award of maintenance is awarded, but it will be a significant consideration in conjunction with other factors. The longer the marriage, the greater an effect the other factors will play.
Factor 3: The age and health of both parties.
Old DRL 236 B(a)(3)
The age of the parties by itself will not determine whether or not maintenance is awarded or the amount, but it will be a significant consideration in conjunction with other factors. The age of the parties will be used to determine the ability of each party's ability to earn income, which in turn, will be used to determine maintenance.
Factor 4: The present and future earning capacity of both parties.
Old DRL 236 B(a)(4)
The current and probably future income of each spouse will often be used to determine if a party is able to be self sufficient or requires an award of maintenance. In Arnone v. Arnone, 36 A.D.3d 1170 (3rd Dept. 2007) the wife was denied an award of maintenance despite her limited work history for the parties 23 year marriage, finding that she made no efforts to return to the workforce.
Factor 5: The need of one party to incur education or training expenses.
Old DRL 236 B(6)(a)(5)
Both the need of the party seeking education, as well as the cost of that training are used to determine maintenance.
Factor 6: The existence and duration of a pre-marital joint household or a pre-divorce separate household.
Old DRL 236 B(6)(a)(6)
This factor has to prongs. The first is if the parties lived together before marriage, that joint lifestyle can now be considered by the court. The second is the court may consider the separate household lifestyle that each party had before the marriage when determining maintenance.
Factor 7 Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law.
Old DRL 236 B(6)(a)(7)
A party's actions which specifically inhibit the other party's ability to be self sufficient will be a factor in determining maintenance. This provision is remedial on the recipient spouse and punitive on the paying spouse.
Factor 8: The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor.
Old DRL 236 B(6)(a)(8)
Any steps a party can take to become self sufficient will be considered. This factor will often be used to determine both the duration and the amount of any maintenance. A common example of this factor is the need for one spouse to return to school before returning to the workforce. In Mora v. Mora 39 A.D.3d 829 (3rd Dept. 2007) the wife was denied extended maintenance despite being disabled, as she could earn an living as a computer specialist. In Ball v Ball, the Court found the wife to be self sufficient due to her education and declined to award her maintenance.
Factor 9: Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage.
Old DRL 236 B(6)(a)(9)
The existence of reduced or lost earning capacity will often determine whether or not maintenance is awarded, with the goal of maintenance being to help bridge the gap until the lost earning capacity is regained or minimized.
Factor 10: The presence of children of the marriage in the respective homes of the parties.
Old DRL 236 B(6)(a)(10)
The presence of children will generally in itself not determine whether or not maintenance will be awarded, but children will play a significant factor when combined with the financial circumstances of the parties.
Factor 11: The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity.
Old DRL 236 B(6)(a)(11)
The existence of family members of either spouse, who inhibited a party's ability to earn income is a factor that will be considered by the court. This is a separate factor from the presence of children. See Factor 10 above.
Factor 12: The inability of one party to obtain meaningful employment due to age or absence from the workforce.
Old DRL 236 B(6)(a)(12)
The inability to work and the level of income available from working as it relates to to age or the length of time away from the workforce will both be a factor in determining maintenance.
Factor 13: The need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment.
Old DRL 236 B(6)(a)(13)
Child expenses can be a factor in determining maintenance, even though these expenses may already be part of a child support award under DRL 240.
Factor 14: The tax consequences to each party.
Old DRL 236-B(6)(a)(14)
Mindful of the fact that at the time the statute was in effect, maintenance was a tax deduction to the paying spouse and was income to the recipient spouse, the courts would consider the tax implications to each spouse. Experts may be needed in complex situations to fully understand the tax impacts.
Factor 15: The equitable distribution of marital property.
DRL 236 B(6)(a)(15)
Any property award under equitable distribution may be a factor considered by the court in determining maintenance.
Factor 16: Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party.
DRL 236 B(6)(a)(16)
Contributions refers to both the financial and non financial contributions made to the marriage and to other spouse. Payments for school, the use of marital funds to form a business are examples of financial contribution, while taking care of children to allow the other spouse the time to advance his or her own career is an example of a non financial contribution.
Factor 17: The wasteful dissipation of marital property by either spouse.
DRL 236 B(6)(a)(17)
Wasteful dissipation of marital assets by a spouse may be offset by awarding the other spouse an award of maintenance.
Factor 18: The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.
DRL 236 B(6)(a)(18)
Transfers made in contemplation of a divorce case for less than fair market value can be offset by an award of maintenance.
Factor 19: The loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties.
DRL 236 B(6)(a)(19)
The loss of insurance benefits and the cost of obtaining new insurance can be a factor in determining maintenance.
Factor 20: Any other factor which the court shall expressly find to be just and proper.
DRL 236 B(6)(a)(20)
A "catch all" factor, the court may consider anything else it deems relevant.
The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts, keeping in mind the overall purpose of most maintenance awards is to allow a spouse to become self sufficient. See Galanopoulos v Galanopoulos (Second Department 2017)
About J. Douglas Barics
J. Douglas Barics is a divorce attorney located in Commack NY who regularly represents individuals in all divorce and family law matters.
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