As discussed in previous Paternity blog posts, on Long Island, New York there exists a presumption of legitimacy for children born “of the marriage.” This means that any child born by the wife during the marriage will be presumed to be the husband’s child. Recently, a New York court has extended that presumption to children born of a same-sex marriage.
As a Long Island Divorce Attorney, one of the main issues I have to address with my clients concerns Spousal Maintenance, sometimes called Alimony. Below are answers to some of the most frequently asked questions I hear.
Spousal maintenance are payments made by the higher earning spouse to the lower earning spouse in a divorce. Many people may know it as alimony, though it is not technically called alimony in New York State. It is intended to ensure that both spouses have an adequate standard of living during the pendency of and after their divorce. Spousal maintenance might be temporary and may be paid during the pendency of a divorce, or might be ordered to continue post-divorce.
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In New York, spousal support in divorce is more often being paid by women than ever before. While headlines about the gender pay gap still abound, it is also true that women are beginning to see higher wages and higher earning jobs than in previous years. In fact, statistics from the Bureau of Labor and Statistics report that 37% of women in heterosexual marriages in America earn more than their husbands. Studies also showed that 3% of alimony recipients in the United States are men. Further, there are now more stay-at-home dads in the United States — approximately 1.9 million of them. Because the disparity in income between men and women has been steadily on the decline, women are becoming more likely to be the spouse that pays spousal support to their former husbands.
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In New York, spousal support in divorce is more often being paid by women than ever before. While headlines about the gender pay gap still abound, it is also true that women are beginning to see higher wages and higher earning jobs than in previous years. In fact, statistics from the Bureau of Labor and Statistics report that 37% of women in heterosexual marriages in America earn more than their husbands. Studies also showed that 3% of alimony recipients in the United States are men. Further, there are now more stay-at-home dads in the United States — approximately 1.9 million of them. Because the disparity in income between men and women has been steadily on the decline, women are becoming more likely to be the spouse that pays spousal support to their former husbands.
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As a Divorce Lawyer practicing on Long Island for many years, I have seen how New York laws on spousal maintenance have evolved over that time. You might find it hard to believe that, before 1980, New York had gender-based spousal support laws under which only wives could receive spousal support. Back then, marital fault on the part of the wife could result in a loss of alimony. (more…)
As a divorce lawyer on Long Island, during the initial consultation I discuss the five major issues in every Long Island Divorce:
When discussing spousal maintenance with clients or potential clients, I find that most people are still using the archaic term “alimony.” As divorce attorneys practicing in Suffolk County and Nassau County, we know that that “alimony”, per se, has been abolished but that spousal maintenance now has taken its place. However, most people view these two words as one in the same.
What’s the Difference Between Alimony and Spousal Maintenance?
The term alimony dates back centuries and was generally only granted to the wife to be paid by the husband. Spousal maintenance, on the other hand, can be awarded to and paid by either spouse. Because husbands are not always a family’s sole or primary wage earner as was once believed, the New York State legislature made it possible for either spouse to receive an award of post-divorce spousal maintenance.
How is a Spousal Maintenance Award Determined in Long Island Divorce?
If the Court were to grant you a post-divorce spousal maintenance award today, the amount and duration of that award would be based upon your personal situation, as well as a multitude of factors. These factors include but are not limited to:
There is no set formula for spousal maintenance in New York and therefore there is a large disparity in the duration and amount of spousal maintenance awarded on each case.
Because of this wide discrepancy, I am reluctant to give a definitive answer when clients ask how much spousal maintenance they are entitled to and for how long. However, on June 30, 2015 a bill passed in both the New York State Assembly and Senate which sets forth a precise formula for calculating post-divorce spousal maintenance awards. Likely as I sit here writing this blog, this bill is waiting on the Governor’s desk for his signature to be passed into law.
The Proposed Post-Divorce Spousal Maintenance Bill
First and foremost, the legislature proposed an income cap on post-divorce spousal maintenance awards of $175,000 (this number will change each year in accordance with the consumer price index).
Post-Divorce Spousal Maintenance and Child Support
What if I am Not Paying Child Support?
If you are the payor spouse but you will not be paying child support on behalf of your children, or you do not have children and therefore there is no issue of child support, the following two formulas shall be used to determine a post-divorce spousal maintenance award.
In both scenarios the post-divorce spousal maintenance award shall be the lower sum of the amounts derived from the two aforementioned formulas.
To learn more about what you need to know about spousal maintenance (alimony) on Long Island and how to get help to protect yourself and your future visit this page: Spousal Maintenance / Alimony on Long Island, NY. If you have concerns about spousal maintenance and what the new legislation may mean to your divorce, contact an experienced Long Island divorce lawyer. Long Island’s Robert E. Hornberger, Esq., PC and his compassionate and experienced divorce lawyers can help. Call us at 631-923-1910 for a complimentary, confidential consultation or fill out the short form on this page and we’ll get right back to you
Check out our Divorce Guide for Dads for more information about divorce issues specifically related to fathers.
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced divorce lawyer Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.
In 2010, sections of the New York Domestic Relations Law (DRL) pertaining to the calculation of temporary Spousal Support were revised with the intent of providing a more uniform and predictable system for Spousal Maintenance distribution. Although three years have passed since the revisions officially went into effect, courts in Nassau and Suffolk County on Long Island are still struggling to interpret the changes to the statute to properly determine the calculation of Spousal Maintenance awards. This new development in New York State law will have significant implications for Long Island couples seeking temporary Spousal Support throughout the course of their Divorce Litigation and beyond.
New Section Establishes ‘Presumptive Entitlement’ for Spousal Support
Including Ongoing Housing and Insurance Costs
Section 236(B)(5-a) of the DRL is the recently implemented section of the statute that replaced the old standard for determining the calculation of temporary Spousal Maintenance payments. Prior to this revision, presiding judges largely determined maintenance awards based upon factors including a party’s standard of living, their reasonable needs, and their ability to pay. The new method to calculate support is configured using a formula that establishes a “presumptive entitlement” award. Recent case law has established that Temporary Spousal Maintenance is meant to encompass all of the expenses of the payee including, carrying costs associated with a marital residence, as well as the payment for health insurance coverage. Khaira v. Khaira, 93 A.D.3d 194 (N.Y. App. Div. 2012).
Calculations for Spousal Maintenance
In accordance with the new revisions to the DRL, the calculation of maintenance has two components for payors with an annual income capped at $500,000.00 or less. First, twenty percent (20%) of the payee’s income is subtracted from thirty percent (30%) of the payor’s income. Second, forty percent (40%) of the parties’ combined total income is calculated and the payee’s income is then subtracted from that figure. The smaller number of these two calculations is considered to be the presumptive entitlement for the purposes of determining temporary spousal support. The end result is that the payee will receive at least thirty percent (30%) and in some cases, forty percent (40%) of the parties’ combined income in temporary support.
Judges Can Award More Than Minimum
Courts have established that it is permissible to award a payee more than the calculated presumptive entitlement award. However, judges must explain and support their decisions to do so. With respect to payors exceeding the $500,000.00 annual income cap under the statute, in addition to calculating a presumptive entitlement award, courts will conduct a further assessment of various factors to determine additional support payments. The statute lists a series of nineteen factors that influence the calculation of maintenance awards under these circumstances. A few of these factors include, the length of the party’s marriage, disparate incomes between the parties, the parties’ standard of living during the course of the marriage, the potential earning capacities of both parties, the wasteful dissipation of marital assets or property by one spouse, the inability of one party to obtain meaningful employment, etc.
Rules for Termination of Temporary Spousal Support
The 2010 revisions to the DRL have not only implemented new guidelines associated with the determination of Spousal Maintenance awards, but they have also provided a new standard for when Temporary Spousal Support ought to be terminated. Prior to the revisions, Temporary Spousal Maintenance payments ceased upon the final entry of a divorce decree. Today, Temporary Spousal Maintenance expires either upon the issuance of the final maintenance payment by the payor, or upon the death of one of the parties. In addition to these changes, the revised version of the statute now specifies that the termination of maintenance should be based upon the length of a marriage. These particular nuances provide the court system with wide discretion, since maintenance may conceivably continue longer than it traditionally had in the past, or it can terminate before a final judgment of divorce is even entered.
New Rules Intended to Provide Uniform System for Spousal Maintenance
Before the 2010 revisions to the Domestic Relations Law, the court system largely determined maintenance awards in divorce actions in a discretionary manner. The purpose of the revisions was to provide a more uniform and predictable system to calculate temporary spousal support payments. The new system adopted by the DRL utilizes a formula to determine a presumptive entitlement award based upon both of the parties’ respective incomes. In situations where the payor falls into the category of earning $500,000.00 or less annually, the payee will receive at least forty percent (40%) of the parties’ combined income in temporary support, or the equivalent of two-thirds of the payor’s income. In cases where the payor exceeds the $500,000.00 income cap pursuant to the statute, a presumptive entitlement award will be determined for the payee, coupled with the court’s consideration of various factors to determine additional support.
To learn more about what you need to know about spousal maintenance (alimony) on Long Island and how to get help to protect yourself and your future visit this page: Spousal Maintenance / Alimony on Long Island, NY. The laws regarding the calculation of temporary spousal support are complex and confusing. It is important to consult with an attorney knowledgeable in how temporary spousal support is calculated as well as the exceptions. If you have any questions, please feel free to contact Hornberger Verbitsky, P.C., for a free consultation at 631-923-1910 or fill out the short form on this page. We’re here to help you.
