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Which Party Generally Has To Pay Alimony Or Spousal Support In A Divorce?


New York’s maintenance statutes are gender neutral, as is required by the federal constitution’s equal protection clause. (Orr v. Orr, 440 U.S. 268 [1979]). New York’s current statute often requires the spouse with greater annual earnings to pay maintenance to the spouse with lower annual earnings. (DRL 236 B 5-a & 6).

Is Alimony Or Spousal Support Always Awarded In A Divorce Case?

No. In some cases, the parties earn approximately the same amount, and therefore the court makes no award of maintenance. In other cases, the court deviates from the maintenance award yielded by formula because of several factors. These are:

  1. the age and health of the parties;
  2. the present or future earning capacity of the parties, including a history of limited participation in the workforce;
  3. the need of one party to incur education or training expenses;
  4. the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
  5. the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
  6. the existence and duration of a pre-marital joint household or a pre-divorce separate household;
  7. acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
  8. the availability and cost of medical insurance for the parties;
  9. the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
  10. the tax consequences to each party;
  11. the standard of living of the parties established during the marriage;
  12. the reduced or lost earning capacity of the payee as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
  13. the equitable distribution of marital property and the income or imputed income on the assets so distributed;
  14. the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
  15. any other factor which the court shall expressly find to be just and proper.

How Many Years Do You Have To Be Married To Get Spousal Support?

There is no minimal period of time. However, the duration of post-divorce maintenance is often pegged to the length of the marriage. (See # 5 below).

This can require some strategic decisions. If you are the payee in a short marriage, it is often wise to file for spousal support in Family Court. If you win an award, the spousal support will continue for as long as one is married. But if you are the payor, one is often wise to commence the divorce to get the durational advisory schedule started.

When Does Alimony Or Spousal Support Begin? Can I Get Support During A Separation?

One can bring a spousal support proceeding in the Family Court before the divorce begins. (FCA 412). The support begins with the court’s order, but it is retroactive to the date of filing.

Can The Amount Of Alimony Or Spousal Support Ever Be Changed?

Maintenance is modifiable. Upon application by either party, the court may annul or modify any prior order or judgment made after trial as to maintenance, upon a showing of the payee’s inability to be self-supporting or upon a showing of a substantial change in circumstance, including financial hardship or upon actual full or partial retirement of the payor if the retirement results in a substantial change in financial circumstances.

For more information on Alimony/Spousal Support In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

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