How is spousal maintenance calculated in New York?

Who pays and what income counts

Maintenance is New York's word for alimony. The rules for awards after divorce are in Domestic Relations Law section 236, Part B, subdivision 6.

The spouse with the higher income is the payor. Income is measured the same way as for child support, but maintenance paid is not subtracted. The formula uses the payor's income up to $241,000.

If the payor earns more than that, the court may add more maintenance at its discretion. It must explain the factors and reasons it relied on.

The guideline formula

Which version applies depends on child support. The first version is used when child support will be paid and the maintenance payor is the non-custodial parent. The second is used in every other case.

• Step 1, with child support:. take 20% of the payor's income and subtract 25% of the payee's income.
• Step 1, without child support:. take 30% of the payor's income and subtract 20% of the payee's income.
• Step 2, both cases:. take 40% of the couple's combined income and subtract the payee's income.
• Step 3:. the guideline amount is the lower of Step 1 and Step 2. If it is zero or less, no maintenance is owed.

For example, say the payor earns $100,000 and the payee earns $40,000, with no child support. Step 1 gives $22,000. Step 2 gives $16,000. The guideline amount is $16,000 a year.

With child support in the same example, Step 1 gives $10,000, so the guideline amount is $10,000. Maintenance is figured before child support, and it shifts income for that calculation.

The low-income adjustment

The payor keeps a minimum for their own living costs, called the self-support reserve. The current reserve is $21,546. If paying the guideline amount would leave the payor below it, the award drops to the payor's income minus the reserve.

If the payor's income is already below the reserve, the law presumes no maintenance. That presumption can be challenged.

How long maintenance lasts

The statute includes an advisory schedule. Length of marriage runs from the wedding to the date the divorce action was started.

• Up to 15 years:. 15% to 30% of the length of the marriage. A 10-year marriage suggests 1.5 to 3 years.
• More than 15, up to 20 years:. 30% to 40%. An 18-year marriage suggests about 5.4 to 7.2 years.
• More than 20 years:. 35% to 50%. A 25-year marriage suggests about 8.75 to 12.5 years.

The schedule is advisory, so a court can go outside it after weighing factors such as health, earning capacity and retirement timing. In some cases a court can order maintenance with no end date. Maintenance ends if either spouse dies or the payee remarries.

Temporary maintenance and agreements

Temporary maintenance can be ordered while the case is pending. It uses the same percentages and the same 40% limit, and it ends no later than the divorce judgment.

A court can depart from the guideline amount if it finds it unjust or inappropriate. It must state the guideline amount, the factors it weighed and its reasons.

Spouses can also settle maintenance in mediation, including agreeing to none. The agreement must be in writing, signed and acknowledged like a deed. Its maintenance terms must be fair and reasonable when signed and not unconscionable when the judgment is entered.