Protecting yourself financially during and after a divorce in New York is critical when you’re trying to rebuild your life and move forward. One of the primary ways you may be able to do this is through alimony, either on a temporary or permanent basis.
In this post, New York divorce attorney Robert Pollack shares the ins and outs of how alimony works in New York.
Let’s dive right in.
- What is alimony?
- What’s the difference between alimony, spousal support, and maintenance in New York?
- The types of alimony
- How to calculate temporary maintenance
- What factors does the court consider when determining alimony
- What’s included in each spouse’s income for determining spousal maintenance
- Does spousal support impact child support or vice versa?
- How long does alimony last in New York
- How is alimony taxed?
- When can spousal maintenance be modified in New York?
- How cohabitation affects alimony
- What results in the automatic termination of spousal maintenance
What is alimony in New York?
Alimony refers to payments from one spouse to the other to provide for the support and maintenance of the supported spouse. The amount and duration can vary widely, depending on the facts and circumstances.
Is there a difference between alimony, spousal support, and spousal maintenance in NY?
Alimony, spousal support and maintenance all mean the exact same thing. As time has passed, the preferred term in New York has shifted from alimony to spousal support or spousal maintenance.
Note: In this article, we use alimony, spousal maintenance, and spousal support interchangeably.
How Alimony Works in New York
What are the types of alimony in New York?
There are two types of alimony in New York: temporary spousal maintenance and post-divorce spousal maintenance.
Temporary maintenance refers to the alimony paid while a divorce is ongoing.
Post-divorce maintenance, on the other hand, refers to the alimony ordered by the final judgment which is paid after the divorce.
Post-divorce maintenance can be divided into two buckets:
- Durational spousal maintenance
- Permanent spousal maintenance
Durational spousal maintenance is paid after divorce for a limited period of time. It is designed as rehabilitative support, allowing a spouse the opportunity to gain skills to re-enter the workforce.
The idea is that if you’re the spouse receiving the support, you will be able to become self-supporting in the future and not require spousal support.
In some cases, it may not be feasible for one spouse to become self-supporting. In these situations, there may be permanent spousal maintenance. Permanent maintenance is paid when a long marriage ends, there is a large discrepancy in your incomes, or you’re not healthy, unable to work or otherwise support yourself.
How is temporary alimony calculated in a New York divorce?
As of January 23, 2016, a statute was implemented that is a formulaic approach to the calculation of spousal support. It’s the same calculation for temporary spousal support and post-divorce or post-separation spousal support. They are identical now.
How does the spousal support calculator work?
It’s a bit complicated. There are two calculations. The result of the two calculations that’s lower is the amount of spousal support paid.
Let’s use two examples — one with round numbers and the other with more details added in.
For the first calculation, you take 20% of the payor’s income, up to and including something called the cap, which is $184,000. That means that if you’re making $200,000, it’s capped at $184,000. Then you subtract 25% of the payee’s income. That will give you result number one.
The second calculation is payor’s income up to the cap of $184,000. Then, you add the payee’s income. If the payee’s income were $16,000, the total would be $200,000.
Then, you take 40% of that income figure and subtract out the payee’s income. You would take 40% of $200,000 minus the $16,000. Compare that figure to result number one; whichever one is lower is what the person pays.
When you divide that by 12, you get the per month payment.
How would the calculations work on the second example?
Let’s say the husband makes $100,000, and the wife makes $20,000. We’re going to do this with no children involved.
The deductions for Social Security and Medicare are taken from both parties. That’s a combined deduction of 7.65% on each. Then, if we look at that, it produces what we call the adjusted gross income for spousal support purposes.
In the husband’s case, the adjusted income would be $92,350. In the wife’s case, it would be $18,470. Those are the numbers we work from.
Then, on the husband’s side, we’ll take 30% of his income, up to including the cap, minus 20% of the payee’s income. The husband would have $27,705 on his side. Then, the wife’s 20% of her income would be $3,694. You subtract them, and you have $24,011. That’s result number one.
The second calculation is the payor’s income, up to the cap. It’s $92,350, plus the payee’s income of $18,470.
That equals a total income combined of $110,820. We use 40% of that, which is $44,328, minus the payee’s income, and it equals $25,858 per year.
The lower of the two results was the first calculation of $24,011. Therefore, after you divide by 12, the monthly alimony payment would be $2,000.92. That’s how it breaks down without children.
I am not going to get into it with children, because that’s going to blow your head apart. It’s ridiculous.
Keep in mind that the court is not required to use the amount of alimony that the calculator spits out. The judge can deviate from the guideline amount.
Do attorneys plug the variables into a calculator?
No. The court provides a calculator, but other people post their own versions of it. You pick one and use it. I tend to use the one provided by the courts. You can go to New York State Court, and you can just search the New York spousal support calculator, and the court one will come up.
What are the factors that the court looks at when determining spousal support?
The court will consider 20 factors when calculating maintenance. Several of the key factors include:
- The income and property of both spouses.
- The length of the marriage.
- The age and health of both spouses.
- Present and future income of both spouses.
- The ability of the receiving spouse to become self-supporting.
- Acts by one spouse which inhibit the other from achieving employment. For example, if there was a domestic violence incident that caused an injury.
- The existence of a premarital joint household.
- Loss of income of the receiving spouse as a result of giving up a career. For example, if one spouse stayed home to care for the children instead of working a full-time job.
- Whether there are children from the marriage that live in the marital home.
- Whether there are disabled children, adult children, elderly, or in-laws that require care.
- Additional child-related costs, such as schooling, daycare, and medical expenses.
- Contributions made by the receiving spouse, for example, if the spouse was a homemaker and did not receive a fixed income.
- Waste of property by either spouse, for example, if one spouse has wasted or lost marital funds as the result of gambling addiction, or also, say, an extramarital affair.
- The loss of health insurance benefits as a result of the divorce. Any transfer of property, for example, where one spouse hides assets.
Then, the last factor is any other factor the court believes is relevant to the decision.
In other words, the last factor gives the court complete discretion to what they award and how long they award it for. Of course, they have to articulate that in a decision, but even on appeals, a trial court is generally sustained, because as the case law says, the trial court was in the best position to judge parties’ credibility. Very few of these are overturned.
What counts as income for the purpose of calculating spousal support in New York?
Income from all sources is what is in the law. For example, if you’re a W-2 wage-earner, there’s that.
If you receive interest from investments, that’s income.
If you rent part of your house to a tenant, that’s income. If you own properties where you have multiple tenants, that’s income.
When it comes to things like that, the court can decide that the income you show on tax returns, after expenses are paid, may not be the income that are used for calculations, because a person can manipulate the income, and reduce the income by showing more expenses.
The court can impute income to you to make it more equitable. If a person who is running a pizzeria, owns a pizzeria, for example, and most of its cash, and he reports $30,000 a year in income, and the guy lives in a $2 million house, you know there’s something wrong.
The court can look at that and say, “No, no, no, no, no. You don’t make $30,000. You make $300,000.”
Other kinds of income? Any income from all sources.
If you were receiving a payout from a personal injury case, which part of it was not pain and suffering, part of it was loss earning. For example, when you get a jury verdict, they say, a million dollars, with $300,000 being a loss of income, and $700,000 is pain and suffering. So $300,000 is then attributable to income.
It’s a broad scope. Anything that comes to you by way of income is included.
Is there anything that’s not considered income when calculating spousal support?
There are very limited exclusions. Social Security disability payments are not counted as an example.
Does spousal support impact child support or vice versa?
When you’re calculating spousal support, you always calculate spousal support before child support. The reason for this is when you calculate child support, the person paying the spousal support gets to deduct that off of his income before the child support is calculated.
The person receiving the spousal support takes that spousal support that she is receiving and now has to include it in her income before child support is calculated.
Yes, one affects the other, significantly.
Duration of Spousal Maintenance
How long do you have to be married to get spousal support in New York?
The right to spousal support arises on the day of your marriage.
However, unless you’re married for approximately six months or more, generally speaking, the court’s not going to award it, because you’d only be getting spousal support for two months, at the most.
It’s not even worth the time unless the income disparity between the two of you is huge. For less than six months, I would say that no court’s going to award spousal support, unless one of you is a multi-millionaire, and the other makes no money.
There is no minimum time, but it must be approached pragmatically.
How long is rehabilitative alimony paid in New York?
There’s something called the advisory schedule. The advisory schedule is a chart that tells you how long spousal maintenance will be paid for based on the length of the marriage.[table id=1 /]
Let’s say you were married on October 1, 2010. And your divorce started on October 1, 2019.
That would be a marriage of nine years. The advisory schedule says up to 15 years, you get 15% to 30% the length of the marriage. That range would be one year, four months to two years, eight months.
That is not written in stone. It can be negotiated. A judge can change that based upon many circumstances, such as your health, future earnings, a loss of health insurance, and others, if you get divorced.
There are many factors in the law where the judge can deviate from the formulaic result of spousal support.
Alimony and Taxes in New York
What are the tax consequences of spousal support? Is alimony taxable in New York state?
As of January 1, 2019, on the federal level, alimony is no longer deductible by the payor spouse, nor is it considered income to the payee spouse.
For your federal returns, if you’re paying spousal support, you do not get to deduct it. If you’re receiving spousal support, you do not declare it. In that regard, it’s like child support always was a non-taxable event on either side.
However, in New York state, as for the state returns, it’s still deductible by the payor. It is tax-deductible to the payee. New York state did not change the law, but the federal government did.
Is it tax-deductible for the payee, or do they have to add it to their income for taxes?
The payee has to add it to their income in New York state, but not federal.
Modifications to Spousal Maintenance in New York
When can spousal maintenance be modified in New York?
If spousal support was awarded through a trial with a judge’s decision, the standard for modification is lower than if it was negotiated and fixed in a settlement agreement, which is a contract between the parties.
It’s two levels of modification impediments.
If you are a recipient of spousal support or the payor of spousal support calculated by a judge in a trial, you have to show a significant change of circumstances.
Either you or your ex-spouse can modify it through court action, but the person wanting the change has to prove extreme hardship.
What’s the impact of cohabitation on alimony?
It’s a misconception by lawyers and laypeople that cohabitation automatically terminates spousal support. That’s wrong. That’s not in the law, but as a custom, it’s written into agreements.
However, the law does say that if one person is holding out, that’s the term, “holding out,” as the spouse of another, then it could be terminated.
For example, John and Mary are boyfriend and girlfriend. Mary is receiving spousal support from her former husband. They move in together and get a joint checking account. They check into hotels as John and Mary Jones, and other things that a reasonable person could look at and say, “They’re married.”
She wants to appear married to this guy. They’re doing everything but legally getting married.
Her ex-husband could go to court to try to prove that she’s “holding out” as the spouse of another and try to get her maintenance terminated.
People hire private investigators to do that, to follow people and see what they do, in order to try to get out of their spousal support obligations.
Are there any other situations that would result in the automatic termination of alimony?
Yes. The death of the payor spouse, the death of the payee spouse, the remarriage of the payee spouse, the holding out as the spouse of another person.
Other situations would include an agreement regarding the duration of spousal support, when that agreement states that maintenance would automatically terminate. Or, in a judicial decision, the court says, “You have spousal support for ten years from today,” then it automatically terminates by itself on that date.
The automatic main terminations are when you or your spouse dies, or the remarriage of the payee spouse.