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Alimony

Alimony in New York

What is Alimony in New York

Per Section 236 B(1)(a) of the New York Domestic Relations Law, alimony, also called maintenance, refers to a monetary payment made by a former or current spouse to the other spouse in accordance with a formal agreement or a valid court order. Alimony may be ordered in New York family courts as well as by the supreme court in a New York divorce action. New York courts usually award amounts that are considered fair and just under the circumstances of each divorce. Alimony payments may be awarded to enable the receiving party to maintain the same lifestyle experienced in the marriage or give that party ample time to attain financial stability.

Although somewhat rare, you may be granted permanent alimony if you stayed at home for large parts of the marriage to manage domestic responsibilities and, upon divorce, are at an age where reeducation to enter the workplace is impractical. Permanent alimony continues for as long as the receiving party lives or remarries. Alternatively, you may be awarded rehabilitative alimony if you require continued education or job training in order to enter the workplace successfully. Rehabilitative alimony will likely continue until you are ready to be self-supporting. Restitutional alimony may be awarded as reimbursement of the support provided by a spouse to the other spouse while going through college or improving vocational skills in order to increase earning potential.

Note that alimony is not automatic in New York and is not always awarded in every divorce case.

New York Alimony Laws

New York Alimony laws are contained within Section 236 of the state's Domestic Relations Law. Prior to 1980, New York made no legal provisions for the payment of maintenance or alimony by divorcing parties. However, in 1980, the state enacted a divorce code, which authorized New York courts to award alimony to either divorcing party only if the courts find that alimony is necessary.

New York alimony laws authorize the payment of alimony or maintenance to one divorcing party while the divorce proceedings continue and also after the finalization of proceedings. Under the alimony statutes, New York courts are permitted to award alimony if the dependent divorcing party lacks sufficient income and property to provide for basic needs and if the other party has sufficient property or income to meet the basic needs of the dependent party. In determining the duration and amount of maintenance or alimony, New York alimony laws require the court to consider:

  • The incomes and properties of the divorcing parties, including the marital properties shared in the divorce.
  • The duration of the marriage, and the ages and health of the divorcing parties
  • The current and potential earning capabilities of the divorcing parties
  • The capacity of the divorcing party requesting alimony to become self-sufficient, as well as, if relevant, the time and training required to attain self-sufficiency
  • The lost lifetime earning capacity of the divorcing party seeking alimony as a consequence of foregoing or delaying education, training, employment, or professional possibilities during the marriage
  • The presence of children born in the marriage in the homes of the divorcing parties
  • The tax implications for each party
  • The services and contributions of the divorcing party seeking alimony as a parent, spouse, wage earner, and homemaker, as well as to the other divorcing party's job or career prospects
  • Wasteful uses of marital properties by either divorcing party
  • Any transfer of money or property, or encumbrance carried out in anticipation of a matrimonial action
  • The divorcing parties' established standard of living in the marriage
  • Any other criteria explicitly determined by the court to be reasonable and appropriate

Note that New York alimony laws are gender-neutral; hence, either divorcing party may be eligible to receive alimony payments. The laws make no distinction between men and women and instead focus on who earns more money. In New York, alimony payments must be made in cash. Alternative forms of compensation, such as services or commodities, do not qualify since they are not made directly to the receiving divorcing party in cash.

How Does Alimony Work in New York?

Like in other states, married couples in New York are financially responsible for one another. This obligation does not end when couples divorce. When a couple ends their marriage union through a divorce and alimony is expected to be paid, the divorcing parties may choose to determine alimony agreement via litigation in a New York family court or by mutual agreement. If litigation is initiated, the lower-earning spouse is permitted to file a pendente lite motion to obtain temporary alimony. The state authorizes courts to issue pendente lite alimony orders where applicable. This is different from the final alimony or maintenance order and is only awarded for temporary support while the divorce case goes on.

New York courts will consider the likelihood that the lower-earning spouse requires financial support for the period while the divorce case lasts in order to offset the costs and stress of the litigation, such as maintaining the service of a divorce attorney. A pendente lite order does not always indicate the amount of post-divorce alimony that may be granted. Sometimes, after the divorce is finalized, there may be no alimony awarded at all. In contrast to pendente lite alimony, post-divorce maintenance or alimony are granted by New York courts after the finalization of divorce proceedings.

Although alimony is more commonly paid monthly, it can also be paid weekly or for a duration specified by the court. Spouses or divorcing parties may agree on payment frequency, such as a monthly direct deposit, and the court will approve it. However, if divorcing parties cannot agree on the payment method, the judge will enter an income execution or withholding order to guarantee the paying party makes monthly payments as at when due.

Income withholding enables the employer of the alimony-paying party to deduct the payments directly from employee paychecks and transfer them to the receiving party. If the alimony-paying party defaults on payments, the dependent party may file a complaint with the court requesting help in recovering past-due payments.

In certain situations, divorcing parties may agree to lump-sum alimony payments, in which the paying spouses will offset the whole amount of maintenance on a specified day. Lump-sum support may be advantageous for some divorced parties because it eliminates the need to wait for a monthly payout. However, the majority of divorced parties paying alimony are unable to offer or afford lump-sum alimony payments.

The 2017 Tax Cuts and Jobs Act modified the way maintenance payments are treated in divorces involving marital dissolution agreements entered into or amended after December 31, 2018. Under the old statute, which has been abolished, the alimony-paying party can claim a tax credit for the amount paid to the dependent party. Also, under the previous law, the dependent party receiving alimony was required to report maintenance as income. Now, maintenance payments are no longer taxed under the current legislation. In addition, the alimony-paying party is not entitled to a tax deduction, and the dependent party does not have to include alimony payments under income. However, the repeal of the old law does not affect pre-December 31, 2018, divorce arrangements. Those agreements continue to be governed by the old statute.

In New York, alimony orders may be amended if three years have elapsed after the order was entered or modified and the other spouse's circumstances have significantly changed. A New York court evaluates changes in circumstances by comparing the current circumstances to the one stated during the original court order. When no proof of a material change is presented, a court is not required to hold a hearing on maintenance since there is nothing to review. A financial emergency that puts one of the parties in danger of becoming a "public charge" may qualify for a review of alimony payments. A public charge is used to refer to an individual who is likely to become dependent on the government for material and financial support. Hence, the emergence of unexpected medical costs or a sudden disaster necessitating additional financial support may be considered a significant change in circumstances.

While either divorced party may seek a modification to an alimony order based on a change in circumstances, the burden is on the divorced party requesting the review to prove the facts evidencing the change in circumstances. It is insufficient for a divorced party to request a modification to an existing alimony order by just asserting that more money is required.

How Long Does Alimony Last in New York?

Alimony is often durational, meaning that alimony payments are usually made for a specified period, typically long enough for the divorced party receiving payment to attain self-sufficiency. However, in certain instances, depending on the receiving party's age, health, and capacity to be self-supporting, that party may be granted permanent or non-durational alimony.

New York court judges generally use an advice schedule provided by the state to determine the period for which alimony payments last. The advisory schedule provides the percentage of time a couple was married as a guideline for the duration of alimony. On the other hand, judges examine a variety of other criteria and are not obligated to consult the schedule.

Typically, divorced parties receiving alimony continue to receive support for about 30% - 50% of the length of the dissolved marriages. Alimony awards in New York are often awarded in this manner:

  • 0 - 15 years of marriage: 15% - 30% of the marriage duration
  • 15 - 20 years of marriage: 30% - 40% of the marriage duration
  • Over 20 years of marriage: 35% - 50% of the marriage duration

However, regardless of what the court orders, alimony terminates if:

  • Either divorced party passes away
  • The divorced party receiving alimony payments remarries
  • The divorced party receiving maintenance habitually lives with a partner who is represented to be a spouse.

How Much is Alimony in New York?

The amount of maintenance or alimony that the dependent divorced party may get is determined primarily by the other divorced party's income and if the dependent party will also get child support from the other party. Currently, New York has placed a cap of $203,000 on the paying party's annual income.

If the paying party's income is equal to or less than the income cap, the court will calculate maintenance using a specified formula that considers both the paying and receiving parties' incomes. Two formulas may be used to determine the amount of maintenance the receiving spouse is entitled to.

The formula used is dependent on whether the paying party will also be responsible for child support payments to the receiving party. It also depends on whether the amount estimated by the first method would result in the paying spouse's income dropping below a predefined level for self-support. While the court is required to follow the appropriate formula in determining the basic amount of maintenance, it is also granted discretion in awarding additional maintenance. In awarding additional alimony payment, the court typically considers 13 factors outlined in Section 236 Part B(5-A)(h)(1) of the New York Domestic Relations Law if the amount awarded is determined to be inappropriate or unjust.

How is Alimony Calculated in New York?

The alimony formula used in New York is based on the incomes of the divorcing parties. The state uses net income in determining the income value in the calculation. New York allows for some deductions from gross income in obtaining the net income, such as social security, Medicare, and specific local taxes.

If minor children are not shared between the divorcing parties, New York calculates the alimony payment in this manner:

  • Deduct 20% of the lower-income spouse's net income from 30% of the higher-income spouse's net income. For instance, if the lower-earning spouse's net income is $40,000, 20% of the amount equals $8,000. If the higher-earning spouse earns $100,000, 30% of that is $30,000. Deducting $8,000 from $30,000 yields $22,000.
  • Sum the net incomes of both divorcing parties and then find 40% of the combined value. In the example, the combined net income is $140,000. 40% of $140,000 is $56,000.
  • Subtract the lower-earning spouse's net income from the figure obtained above. From the example, deducting $40,000 from $56,000 yields $16,000.
  • Next, the final value obtained in the first step is compared with the value calculated in the above step to obtain the lower amount. That amount is then divided by 12. Hence, in accordance with the example, the lower amount of $16,000 is divided by 12 to obtain $1,333 per month.

If there are minor children shared between divorcing parties, the alimony is calculated in this manner in New York:

  • Deduct 25% of the lower-income spouse's net income from 20% of the higher-income spouse's net income. For instance, if the lower-earning spouse's net income is $40,000, 25% of the amount equals $10,000. If the higher-earning spouse earns $100,000, 20% of that is $20,000. Deducting $10,000 from $20,000 yields $10,000.
  • Sum the net incomes of both divorcing parties and then find 40% of the combined value. In the example, the combined net income is $140,000. 40% of $140,000 is $56,000.
  • Subtract the lower-earning spouse's net income from the figure obtained above. From the example, deducting $40,000 from $56,000 yields $16,000.
  • Next, the value obtained in the first step is compared with the value obtained in the last step above to verify the lower amount. That amount is then divided by 12. Hence, in accordance with the example, the lower value of $10,000 is divided by 12 to obtain $833 per month.

How to Avoid Paying Alimony in New York?

You can avoid paying alimony in New York if there is an agreement between you and the other divorcing party to waive payments or not to pursue maintenance in court. You can also avoid alimony payments if you sign a prenuptial agreement enforcing the waiver of alimony rights. A prenuptial agreement is a premarital contract or agreement between couples that was signed prior to marriage enabling the parties involved to control and select the legal rights acquired upon marrying and what happens when the marriage ends by death or divorce.

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