What Is Maintenance Under New York Law and What Triggers It?

In New York, “Maintenance” is simply another word for “Alimony.” Maintenance is a legal obligation placed on one spouse (the spouse with greater income) to provide financial support for the other spouse (the spouse with less or no income) for a specified duration of time. If your divorce was commenced after January 25, 2016, the Maintenance Guidelines Law (“Guidelines”) will apply.

There are two types of Maintenance. The first is “temporary” maintenance which a court may award to the lesser income spouse while a divorce action is pending. The second is “post-divorce” maintenance, which a court may award following the action of divorce — or in the case of a non-litigated divorce, the parties may agree to it as part of their divorce settlement pursuant to mediation or collaboration.

The guidelines provide two formulas to calculate the amount of maintenance to be paid: a lower formula and a higher formula. The lower formula calculation will be applicable where there are children and child support is being paid by the maintenance payor. However, if the maintenance payor will not be paying child support, then the higher formula will apply.

Here are a few things to be aware of:

• Maintenance isn’t always triggered just because one spouse has a greater income than the other spouse. There generally needs to be a 30% difference in income for maintenance to be triggered. For example, if the higher-income spouse is making $100,000 annually and the lower-income spouse is making $85,000 annually, maintenance will not be applicable in that case.
• As of the date of this post, there is also an income cap of $228,000 for the maintenance payor’s income. This means that the formula will only use the payor’s income up to a cap of $228,000 when calculating the amount to be paid by one spouse to another. That said, when a court awards maintenance, they consider not only the cap, but also 15 other factors
  
• Some of these factors include the age and health of the parties, the present or future earning capacity of the parties, the need of further education and training of one of the parties, in addition to many others. See DRL Section 236 B(6)(E)(1). Based upon these factors, a court has the discretion to adjust the maintenance amount upwards in excess of the cap, or downwards.

• The duration of maintenance (i.e., how long the payor will need to make payments to the payee) is based not only on the 15 factors previously mentioned but also considers an “Advisory Schedule for the Duration of Maintenance.” This advisory schedule ranges from 15% of the length of marriage (for shorter marriages) to 50% of the length of marriage (for longer marriages). For example, for a 20-year marriage, the payor may be required to pay maintenance for 10 years (50% of the length of the 20-year marriage).

As always, in mediation, the parties are free to negotiate their own settlements. Mediators will inform their clients using the applicable formula to determine what the law provides, but then help them negotiate a settlement that best suits the needs of the parties and their families. Another option is to pre-determine maintenance pursuant to divorce by entering into a pre-nuptial or post-nuptial agreement.

If you have any questions about maintenance, including whether it will be triggered in your circumstances, please reach out as I am happy to answer any questions that you may have.