Articles Posted in Spousal maintenance & support (alimony)

calculatorIdentifying marital property and determining how to equitably distribute that property is very often made far more difficult when one spouse is financially dependent on the other. In order to prevent the “breadwinning” spouse from leaving the other spouse without a source of support, New York authorizes courts to award temporary maintenance while a divorce is pending. A court in the Rochester area recently considered a wife’s request for temporary maintenance in an ongoing divorce matter. The court’s April 2016 ruling in Cooper v. Cooper reviews the temporary maintenance guidelines, analyzes the parties’ assets, and assesses whether the payment of maintenance would even be possible at that particular point in time.

The guidelines for temporary maintenance are set forth in § 236(B)(5-a) of the New York Domestic Relations Law. Prior to January 1, 2016, the “income cap” for temporary maintenance calculations was $175,000 per year. If the payor’s income is less than or equal to that amount, and the payor is also paying child support to the payee, the guideline amount of temporary maintenance (TM) is the lesser of 20 percent of the payor’s income (Pr) minus 25 percent of the payee’s income (Pe), which could be written as TM = (Pr × 20%) – (Pe × 25%), or the difference between 40 percent of the sum of the parties’ income and the payee’s income, or TM = ((Pr + Pe) × 40%) – Pe. Child support is deducted from the payor’s income and included in the payee’s. If the lesser of the two amounts is less than zero, the guideline amount is zero dollars.

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https://www.newyorkdivorceattorney-blog.com/files/2016/05/Screen-Shot-2017-01-05-at-1.02.37-PM-300x234.pngNew York state law allows courts to award spousal maintenance, also known as “spousal support,” “alimony,” or simply “maintenance,” to a spouse in a divorce proceeding. Maintenance orders vary widely in duration and amount, depending on the circumstances of the parties. Calculating the amount of maintenance payments has been the subject of much controversy, resulting in reforms by the New York State Legislature in the summer of 2015. A New York appellate court addressed a common ground for disputing a maintenance order, which was that the amount of the order “is excessive and should be reduced,” in its March 2016 ruling in Stuart v. Stuart.

Two types of maintenance are available in New York divorce cases. Temporary maintenance must be paid while the divorce case is pending, but it terminates once the court grants the divorce. Post-divorce maintenance, as the name suggests, is payable after the parties are divorced. The duration may be for a defined period of time, as agreed by the parties or ordered by the court. Otherwise, it could be payable until either spouse dies or the recipient spouse remarries.

New York has modified its provisions for calculating maintenance twice in the past six years. In 2010, the Legislature passed a bill applying a formula to temporary maintenance calculations, but it left a less structured system in place for calculating post-divorce maintenance. These provisions reportedly resulted in some situations that were not only unjust but also unrealistic, with people being ordered to pay maintenance amounts greater than their actual income. A bill passed by the Legislature in June 2015, and signed by the Governor in September, applies a formula to post-divorce maintenance calculations. The rather complicated series of formulas is codified in § 236(B)(6) of the New York Domestic Relations Law (DRL).

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By דקי (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia CommonsA person seeking a divorce anywhere in the United States in 2016 is no longer required to prove wrongdoing by the other spouse. In 1970, California enacted the nation’s first “no fault” divorce statute, which allows a spouse to bring a cause of action for divorce based on “irreconcilable differences.” New York was the last state to authorize no-fault divorce, on the ground that “[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months,” in 2010. Many states now only allow no-fault divorce, but New York is among the states that still allow fault-based claims for divorce, such as “cruel and inhuman treatment,” abandonment, and adultery. This can play a role in multiple aspects of a New York divorce, as a Brooklyn court noted in a December 2015 decision, Alice M. v. Terrance T. The court went so far as to describe it as a perfect example of “egregious conduct by one spouse against another spouse.”

The two main issues in the Alice M. case were the equitable division of marital property and a claim for spousal maintenance. Under New York law, most property acquired during a marriage is deemed marital property. Section 236(B)(5) of the New York Domestic Relations Law (DRL) establishes procedures for the equitable distribution of marital property, based on factors like the age and health of the parties, each party’s income, equitable claims or waste by one spouse, or other factors that the court “expressly find[s] to be just and proper.” The court in Alice M. noted that, based on a precedent case, “marital fault is not…‘a just and proper’ consideration in determining equitable distribution of marital property.”

Spousal maintenance, sometimes still known as alimony, is governed by § 236(B)(6) of the DRL. The court may order an amount to be paid by one spouse to the other, based on economic factors like whether child support is to be paid and in what amount, the payor’s ability to pay, and the payee’s needs; and on fault-based factors like waste of marital property and acts of domestic violence by one spouse against another.

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Tumisu [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabaySpousal support, also known as spousal maintenance or alimony, is sometimes part of a final divorce judgment in New York. State law regarding spousal maintenance often describes the obligation using specific gender terms, with the ex-husband responsible for payments to support the ex-wife. The statute addressing modification or termination of maintenance uses this sort of language. This balance of financial power has never been the case for every divorcing couple in New York, and this is probably relevant more so now than at any point in the past. In April 2015, the Supreme Court of Monroe County, New York considered in Sanseri v. Sanseri whether current law regarding termination of maintenance needs to be reconsidered or updated.

Section 236 of the New York Domestic Relations Code identifies alimony as payments by one spouse, regardless of gender, “to provide suitably for the support of the other.” State law provides two mechanisms for modifying or terminating maintenance, which the Sanseri court reviewed in its order. Domestic Relations Law § 236(B)(9)(b)(1) has two provisions. If a prior court order established a maintenance obligation, “modification requires proof of a substantial change in circumstances.” If maintenance is established in a separation agreement, proof of “extreme hardship” is required. Both “extreme hardship” and “substantial change” are largely based on the difference between the payor’s financial state at the times of the order and the motion to modify.

Section 248 of the Domestic Relations Law, enacted in 1938, provides that a husband can move for modification or termination of maintenance if “the wife is habitually living with another man and holding herself out as his wife.” The meaning of “holding herself out” was at the center of the dispute in Sanseri. The court looked to the legislative and jurisprudential history of marriage in New York to find an answer.
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By Minesweeper at en.wikipedia [Public domain], from Wikimedia CommonsPeople who serve in the United States Armed Forces are entitled to a variety of benefits through the U.S. Department of Veterans Affairs (VA), including pensions and other retirement income, health care, life insurance, and dependent and survivor benefits. In a divorce in the state of New York, certain VA benefits are treated as assets subject to equitable distribution. VA benefits may also constitute income to be considered in calculating child and spousal support. The divorce process can present concerns for both veterans and spouses of veterans, both of whom may worry about losing assets or income streams on which they depend.

The New York Times recently published a story by the former spouse of a National Guard member who deployed to Iraq and returned home with physical and psychological injuries. She describes helping him obtain assistance through the VA, and the ongoing treatments and tests that eventually resulted in diagnoses of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). Unfortunately, the two were not able to make the marriage work, and they divorced. The author states that she is lucky, since she has a job that provides benefits. Many military spouses who end up divorcing find themselves cut off from support from the VA.

Several types of VA benefits are particularly important in a divorce proceeding:

– Pensions:  Some veterans are eligible for tax-free retirement benefits.
– Life insurance:  The VA provides numerous life insurance options for veterans and their dependents.
– Health care:  The VA operates a large network of healthcare facilities, including hospitals and clinics.

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By midweekpost (Flickr) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsAn unusual lawsuit filed in state court in Manhattan claims that the defendant harmed the plaintiff by not getting a divorce. The parties were allegedly involved in a romantic relationship for several years, although the defendant was still married to someone else. The plaintiff is seeking reimbursement for time spent as the defendant’s “glorified gofer,” as the New York Post puts it. The lawsuit is somewhat reminiscent of cases in which a person claims compensation or support from a former romantic partner, in the absence of a marriage relationship. This type of claim is informally known as “palimony,” a combination of the words “pal” and “alimony.” The case is also notable for the defendant’s alleged claim that he is unable to obtain a divorce.

The plaintiff claims that she is entitled to $2 million in compensation. The 67-year-old plaintiff was reportedly involved in a relationship with the defendant, an 88-year-old retired media executive, for about six years. During that time, she claims that she performed various business and personal services for him, including promoting a memoir he wrote and investigating his wife in search of evidence he could use in their divorce proceeding.

Throughout the relationship, the defendant resided with his wife. He allegedly claimed that his wife refused to agree to a divorce, telling the plaintiff that his wife said she would “see them bury you six feet under before I grant you a divorce.” New York does not actually require both spouses’ consent in a divorce case. A court may grant a divorce if one spouse states, under oath, that the marital relationship “has broken down irretrievably for a period of at least six months,” although the court must also resolve issues like equitable distribution of marital property. A refusal to “grant” a divorce might just mean a refusal to cooperate in this legal process.

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