Maintenance

Long Island Spousal Maintenance Attorney

How Maintenance is Determined in a New York Divorce

As part of the complete revision to New York's divorce laws in 1980, the term "maintenance" was used for all spousal support awards made under the new law of DRL 236 Part B, while the term "alimony" was retained for all spousal support awards made under the prior law, reflected in DRL 236 Part A. Today, the terms are largely interchangeable, with "alimony" still in widespread use by many states and the IRS.

Maintenance is defined as the payment of money from a spouse or former spouse, periodically, based upon an order or written agreement. Compliance with this definition was important to obtain the now repealed tax advantage of maintenance/alimony; the paying spouse could deduct the payments and the recipient spouse would have to declare the payments as income. Due to the progressive tax structure of Federal taxes, this income shifting model allowed significant tax savings resulting in more resources to be available for both spouses.

The purpose of maintenance has shifted radically over the years. Under pre-1980 law, alimony was the primary ancillary relief available in a divorce, with only wives being authorized to receive alimony. That award was directly tied to marital fault, and if the wife was found to be the party at fault for the divorce she could be deprived of all alimony.

The concept of marital property did not exist prior to 1980 either, meaning that all financial issues had to be addressed through alimony. For example, the loss of a married couple sharing in the husband's pension upon retirement was a factor in the wife's alimony award; she had no right to obtain a part of his pension directly.

Since alimony was directly tied to marital fault, and due to the lack of a property award, alimony would only be awarded when the husband was at fault for the dissolution of the marriage. Since the wife was not at fault, alimony was based upon the standard of living during the marriage, essentially trying to let the wife continue living under that same standard since she was not to blame.

The original purpose of alimony awards no longer exists, as it was the sole remedy available to women at a time when the economic prospects for women were sparse and there was no such thing as marital property.

The removal of the gender limitation, the removal of fault as a condition to maintenance, and the authority to award marital property radically changed the framework of maintenance. In its early years, the primary goal of maintenance remained the same; maintaining the marital standard of living. But that was offset by property awards and the growing number of women in the workforce.

Over time, the standard began to shift to rehabilitative maintenance, designed to cover the spouse until such a time as they could obtain skills to be self-sufficient. The amount and duration was left entirely up to the judge, who would apply a number of statutory factors.

The problem with this approach was that the amount of maintenance awarded could vary wildly from judge to judge, with people in similar circumstances having wildly disparate awards of maintenance.

Maintenance was again revised in 2016, with a formula-based approach to determine the amount, and non-mandatory guidelines for the duration, and today, maintenance is gender neutral and is primarily used to rehabilitate a spouse who has been out of the workforce due to the marriage. Lifetime maintenance is rare, but it still can be awarded if circumstances dictate.

Services Offered

• Representation in all divorce matters involving maintenance: Representation in all matrimonial actions where maintenance is an issue at both the trial and appellate level.
• Maintenance Calculation: Assistance clients in determining guideline awards to assist in preparing for trial and settlement negotiations.
• Complex Maintenance Situations: Expertise in dealing with deviation from guideline awards, considerations of income producing assets as awards of equitable distribution, consideration as to retirement dates and their effects on future modifications.

Why Choose The Law Office of J. Douglas Barics

At the Law Office of J. Douglas Barics, we have extensive experience in matrimonial law and awards of maintenance. Let our nearly 30 years of experience work for you.