Based on the various factors of each case, the court may order one party to pay to the other party sums of money for that parties’ maintenance and support, which used to be called “alimony.” In making an award of maintenance, the court must consider the following factors:
Except where the parties have entered into an agreement setting maintenance on their own, the court may award maintenance in any such appropriate amount having the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties. The order of maintenance shall be made retroactive to the date of the first request for maintenance, and any retroactive amount of maintenance due shall be paid in one sum or periodic payments, as the court shall direct, taking into account any amount of temporary maintenance which has been paid.
In determining the amount and duration of maintenance the court shall consider the following:
- the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
- the length of the marriage;
- the age and health of both parties;
- the present and future earning capacity of both parties;
- the need of one party to incur education or training expenses;
- the existence and duration of a pre-marital joint household or a pre-divorce separate household;
- 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;
- the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
- reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
- the presence of children of the marriage in the respective homes of the parties;
- the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity;
- the inability of one party to obtain meaningful employment due to age or absence from the workforce;
- the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
- the tax consequences to each party;
- the equitable distribution of marital property;
- contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
- the wasteful dissipation of marital property by either spouse;
- the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
- the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
- any other factor which the court shall expressly find to be just and proper.
Some awards of maintenance are for a specific period of time, often for the purpose of giving the recipient-spouse the opportunity to “rehabilitate” his/her skills, that is, to get he skills they once had before children or marriage, etc., back up to par, that will enable them to get back into the workforce and to become self-supporting.
Other maintenance awards are non-durational, that is without a specific cut-off date. Most likely, these types of awards are made in a situation where the marriage has been long-term, with the needy spouse (often the wife) having been out of the work force for a long period of time, where she has no or very little skills and she is of an age where even if she would get back into the workforce, it won’t be long before the parties reach retirement age at which time pensions, 4011ks, deferred compensation plans and Social Security benefits go into “pay-status.”
While parties must be married to one another to seek and obtain an order of maintenance from the other party, the parties do not have to be going through a divorce action to do so. If parties are married but physically separated, they can petition the court for an order of maintenance.
Maintenance is tax-deductible by the person who pays it, and is income to the person who receives it. This means that the person who pays maintenance can deduct it on his/her tax return and the person who receives it, must include it as income on his/her income.
Philip S. Milone, has handled may hundreds of maintenance cases within matrimonial actions and cases brought on their own in the Family or Supreme Courts. You should call Philip S. Milone today for an appointment to meet with him to see if you are entitled to support or if you are not obligated to pay support to someone who may be making a claim against you.
