Your marriage is ending and the same fears keep rushing through your head:
The house: “Will I have enough money to keep it?”
The bills: “How will I be able to pay them?”
Health insurance: “Will I be able to get coverage?”
Retirement: “Will there be any money left to save for the future?”
In divorce, all of these fears are normal and have the very same thing in common:
Money.
And when it comes to money and divorce, there's one issue that's more emotional, causes more disagreements and is more challenging to resolve than any other.
Whether you call it alimony, spousal support or spousal maintenance, New York couples needing to come to agreement on a matter that will require an ex-husband or wife to give money to their former spouse is challenging, to say the least.
In this post, we'll take a closer look at this controversial and complex topic. And shed some light on what a divorcing couple can do to come to an alimony agreement they both find fair.
Note: For the purposes of this article, the terms alimony, spousal support and spousal maintenance are all used interchangeably because people search the web using all of these terms. However, in New York the preferred term is currently maintenance / spousal maintenance.
In its most common form, spousal maintenance is a payment made from one ex-spouse to the other over a pre-determined period of time, based on what was agreed to by the parties in their divorce decree.
And while most people commonly think payments are usually made after the marriage ends and divorce is final, that's not always the case when it comes to spousal maintenance. New York also allows for something commonly referred to as "temporary maintenance" or what lawyers may refer to as "alimony pendente lite."
Temporary maintenance may be paid from one spouse to the other while the couple is still married and going through divorce proceedings. Providing each party with a share of the marital income until a more permanent alimony number is agreed upon.
Any pendente lite alimony is based on the NY temporary maintenance calculator. Which due to recent alimony reform in New York, is now also used to determine alimony payments once a divorce is final.
That will be covered in greater detail later in this article.
But as you'll learn, calculating alimony in New York is not as simple as it seems!
For couples with children, spousal support is one of four topics that are discussed, negotiated, and agreed upon in divorce mediation along with:
Unlike child support which is meant to assist with the children's expenses, spousal maintenance in New York is meant to assist with an ex-spouse's expenses.
I've had clients ask, "Do women pay alimony?" and the answer is - yes. It is strictly based on need and is gender-neutral. Meaning that both women and men can either pay spousal support or be eligible to receive it.
"With emotions running high and a New York maintenance calculator that allows for significant deviation by the parties and produces 'interesting' results, things can quickly go off the tracks if you involve attorneys.
That’s why it's better to work with an experienced divorce mediator like me.
I’ll take you through my proven, step-by-step process and help you and your spouse negotiate and come to an agreement on alimony in NY state that's fair to both of you."
You would think having a calculator to determine maintenance in New York would make things easier. But it has only made matters more difficult.
Let's take a closer look at how the New York maintenance calculator works and the problems it can create in a New York divorce.
Right off the bat, we start with controversy as there are two different ways you can calculate spousal maintenance in New York.
Method one:
Method two
Which method you use depends on a number of factors including your respective incomes and whether or not you have children.
And since each method will produce different results, it's likely you and your spouse will be in disagreement right from the start.
Because if you're the one paying, you'll want to use the lower amount. But if you're the one receiving, you'll want to receive the higher amount!
Effective March 1, 2024, the NYS alimony calculator changed its upper-income limit to $228,000. This cap is revisited every two years.
That means for the purposes of calculating spousal support in NY, even if one spouse earns significantly more than $228,000 in net income, only the amount of earnings up to $228,000 will be considered in the guideline calculation.
For example, let's say one of you is working inside the home and caring for the children, while the other earns $500,000 working outside the home for a corporation. Resulting in a guess-timated net income of $400,000.
However:
Now what?
If you go by what the guideline says, you'd base your calculation on $228,000, and not the actual net income.
So if you're the spouse paying support, you might find this to be fair. But if you're the one receiving support, you might not.
Since alimony in NY is considered income to the receiving party and a reduction in income to the paying party, it will impact the calculation of child support in New York.
So you can't just calculate child support or spousal maintenance in a vacuum - the two issues are tightly intertwined.
You need to resolve both issues simultaneously.
Here's what typically happens when people try to use divorce calculators on the Internet:
And all of their numbers are wrong.
So they'll argue and never come to an agreement because each of them thinks they're right.
If they then involve attorneys, round and round they'll go, ultimately winding up in family court. And before long, they'll have spent more on legal fees than the difference in the amounts of child support and maintenance they were arguing about in the first place!
Even though there is a spousal maintenance calculator, New York allows divorcing couples to deviate from the amount it outputs provided the two spouses can agree on an alternate amount.
So after all those calculations and gyrations to determine net income and upper-income limitations, you can choose to bypass the result and come to an amount you both think is fair instead.
When you hear the word "calculator," you might think, "Oh good, the calculator will tell me what some typical alimony payment will look like. I'll throw a few options in there, push the button and I'll be all set."
But not only can you choose to deviate from what the maintenance calculator suggests on a case-by-case basis (see issue #4 above), but you and your spouse can also define what "counts" as income.
Remember when I said you have to solve both child support and alimony in NY simultaneously? Well, add equitable distribution into that mix as well.
In New York, any income generated from investments, rental properties, etc. also counts as income in the alimony calculation.
So if you have income-producing assets like a mutual fund portfolio or rental property, until you determine which assets each of you is going to receive in the divorce, you can't settle on an alimony amount.
Just one more reason this issue is far too complex and emotional to try and resolve on your own!
As if figuring out spousal maintenance in New York wasn't hard enough, we've got yet one more factor to toss in. The cost of living.
Say your marital home was in White Plains. And you're the one paying alimony.
But because you work in Manhattan, and are tired of the commute, you decide to move to New York City, post-divorce. You're going to need some serious coin to do that!
So do you pay him or her less because you need to keep more money to move to NYC? Or do you pay based on what it will cost them to keep living in Westchester, and you'll just have to figure out how to make it work?
Good question...
In addition to agreeing on an amount of spousal maintenance, you and your spouse also need to agree on how long it will last, aka duration.
How long do you have to pay alimony is based on how long you've been married. And just like the New York maintenance calculator outputs an amount, it also outputs a duration.
To give you an idea of how long do you pay alimony, the NY duration guidelines are as follows:
But much like using the guideline to determine an amount, there are also issues with using it to determine duration.
Let's say you and your spouse have two children, ages 8 and 11, and were married for 14 years. You desperately want to keep the kids in the home but you're a stay-at-home parent and haven't worked outside the home in more than 10 years. So because your job prospects and earning potential will be extremely limited, you'd be relying heavily on alimony.
Per the guidelines above, the suggested duration of alimony in NY would be between 2.1 and 4.2 years. So if support were to end even at the upper range of the duration (4.2 years), at that time, one of your children would be 15 and most likely a sophomore in high school, and the other would be 12 years old and in middle school.
Is that really the best time to have to move them out of their house and away from their school and friends?
Is it in their best interests? Or what you want for them as mom or dad?
Now let's go back to the same example (the kids are 15 and 12 when spousal maintenance ends) but this time, both you and your spouse work full-time at a corporation. Given the ages of your kids, you might determine they are old enough to be left alone for a bit between the time they get home from school and the time you get home from work.
But what if your marriage was shorter in duration? And your children were much younger?
Let's say you and your spouse have been married 6 years and have a 3-year-old and a 1-year-old. The range for the duration of spousal maintenance would be between 11 months and 1 year and 10 months.
In this case, the spouse who is caring for the children would have no choice but to go back to work before the children reached school age. Thus creating incredible scheduling difficulties with respect to child care, and also incurring tremendous childcare costs.
Have you ever priced out daycare for young kids? Yikes!
In this case, it may actually be more cost-effective for one spouse to stay home with the children. But if you strictly follow the guidelines on duration for alimony in NY, that might not be possible.
While technically there are only two types of alimony in NY - temporary maintenance and spousal maintenance - there can be other, more creative ways to resolve this issue because some people just don’t like paying alimony.
For example, sometimes divorcing spouses will trade alimony for equitable distribution (marital property and/or other assets). Or do lump sum alimony or an alimony buyout.
Another option that isn't explicitly mentioned in New York but can also be an option is something called rehabilitative alimony.
Where instead of paying an ex-spouse money every month just to cover their expenses, they instead pay for them to go back to school. In turn, earning a degree and improving their earning potential.
Fighting and fighting. Around and around in circles - in a very gray area. All while billing you their outrageous hourly fees.
Until neither you nor your spouse has any money left to keep paying your legal fees.
And there's no money left for alimony!
Just one more reason it’s better to not involve lawyers in your divorce negotiations.
And if the issue cannot be resolved between the two of you and your lawyers, your case will go to court.
There’s something you need to understand here: In a litigated divorce, a family court judge determines who gets what.
Sounds scary, doesn’t it?
Because they’ll dictate the terms of the settlement and tell you what you’re going to pay or receive.
That’s why it’s better to negotiate an amount and duration each spouse finds fair out of court. And negotiation is exactly what NY divorce mediation is all about.
In mediation, you get to decide - and come to an agreement you both agree is fair, instead of letting your future be decided by a stranger.
One that works for you and your children. And regardless of what the NY spousal maintenance guideline imposes upon you.
We'll also explore a variety of alimony types and balance them against both child support and equitable distribution since as we learned above, all three topics are inter-connected.
We’ll actively guide you through our comprehensive budgeting process to reflect your marital as well as projected post-marital expenses. So we can take a close look together at what each of you earns, spend, and will need to move forward.
And since we offer all-inclusive, flat-fee mediation services, we have no vested interest in prolonging the conflict because we don’t bill you hourly like a lawyer would.
If you and your spouse have both agreed to divorce and want to mediate out of court, take the next step and book a mediation strategy session for the two of you.
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