If you are legally married and you are not living with your spouse and not already in the process of divorce, you can seek spousal support in Family Court. A spousal support order from Family Court may be incorporated into a divorce if either of the parties later starts a divorce action in Supreme Court. A spousal support order from Family Court ends when a divorce is granted. Only the Supreme Court can order spousal support (which is called “maintenance” in a divorce) to continue after divorce.
Spousal support is an amount of money that the court orders one spouse to pay to the other spouse for his or her reasonable needs. Spousal support may be ordered even when spouses reside together.
In New York State a married person may be legally responsible to provide for the support of his or her spouse during their marriage, if that spouse lacks sufficient income or assets to provide for his or her own reasonable needs.
Can I file for spousal support in Family Court?
Can I file for spousal support as part of my divorce?
Yes. In a New York divorce, spousal support is called “maintenance”. If you are legally married you can seek maintenance as part of a contested divorce in Supreme Court. The spouse who pays maintenance is commonly referred to as the “payor” and the spouse who receives maintenance is commonly referred to as the “payee.”
How is spousal support/maintenance determined?
In New York, spousal support/ maintenance is determined by a guideline calculator based upon the income of the two parties and the length of their marriage. The Court is allowed to deviate from the guideline amount based on a number of potential rebuttal factors, however, such deviations are rare. The calculation the Court uses is set forth below. There is also a convenient online calculator tool.
Note that the parties are allowed to take certain deductions from their incomes for various qualifying tax expenses such as state and city income tax and FICA taxes.
Amount is the lower of the two results between
1) 30% of payor’s income up to and including income cap (currently $184,000) minus 20% of payee’s income
2) Payor’s income up to and including income cap (currently $184,000) plus payee’s income equals total income then do 40% of combined income and subtract the payee’s income from that
Guideline Duration is based on the length of marriage
1) Marriages 0-15 years = 15% to 30% length of marriage
2) Marriages 15-20 years = 30% to 40% length of marriage
3) Marriages more than 20 years = 35% to 50% length of marriage.
Most people are understandably confused by this complicated abstract math. An example may be helpful. Let us assume A is married to B and the two have no child together.
They have been married 12 years. A earns $80,000 per year and B earns $20,000 per year. After deductions for taxes noted above, A’s adjusted income is $71,277.28 per year and B’s is $18,164 per year.
Under formula 1, maintenance would be $17,750.38 per year (30% of $71,277.28 or $21,383.18 minus 20% of $18,164 or $3,632.80).
Under formula 2, maintenance would be $17,612.51 per year (the parties combined income is $89,441.28 and 40% of that is $35,776.51 minus the payee’s income of $18,164).
Formula 2 is the lower of the 2 formulas, so guideline maintenance would be $17,612.51 per year. That could be paid monthly ($1,467.71), bi-weekly ($677.40), or weekly ($338.70) based on the parties’ agreement or at the Judge’s discretion. As to duration, the parties are in category 2. 30% to 40% of their 12 year marriage is 42 months to 57 months, which is the guideline duration amount. Thus, under the guidelines, in our hypothetical scenario, A should be paying B maintenance of $1,467.71 per month for a duration between 42 months to 57 months.
NOTE: Spousal support/maintenance is a complicated and extremely nuisance issue. You should always consult with an attorney about the specifics of your individual situation.
What are the tax implications of spousal support/maintenance?
For spousal support/maintenance awards as part of divorces finalized before January 1st, 2019, spousal support/maintenance is a taxable event. In other words, spousal support received is taxable to the recipient and a tax deduction to the payor. After January 1st, 2019 that will remain the rule at the State and City Income tax level, however, at the Federal tax level spousal support will no longer be taxable to the recipient spouse and the payor spouse will have to pay all Federal taxes on maintenance to the payee.
Are family law related court files confidential?
Family Court and Supreme Court matrimonial files are confidential. Only parties, their attorneys, or someone with a written authorization signed by a party may have access to them.
The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.