DURATION OF POST-DIVORCE MAINTENANCE

By Kelly Mikullitz

New York State law provides that, except where spouses have entered into a formal Agreement providing for or waiving maintenance payments (spousal support), the Court shall, in any matrimonial action upon proper request of a party, make an award of post-divorce maintenance. 

The Court “may” determine the duration of post-divorce maintenance in accordance with the following “advisory” schedule: Length of Marriage Percent of the length of marriage for which maintenance will be payable 0 up to and including 15 years 15% – 30%; More than 15 years, up to and 30% – 40% including 20 years; More than 20 years 35% – 50%.

Note that the schedule is advisory only and use of the word “may” regarding the Court’s actions indicates that the Court has discretion to vary the duration of post-divorce maintenance from the advisory schedule. Whether or not the Court uses the guidelines of the advisory schedule, the Court is obligated to consider the statutory factors enumerated in deciding a maintenance award that deviates from the statutory formula. 

These factors include, but are not limited to, the age and health of each party, the present and future earning capacities of each party, any wasteful dissipation of marital assets, inhibition of the payee’s ability to earn income, tax consequences of the award, the distribution of marital property, and contributions by the payee spouse as a homemaker, spouse, parent and wage-earner. In determining the duration of a post-divorce maintenance award, the Court may consider the anticipated retirement of each party and the retirement assets available. 

Any award of post-divorce maintenance payments shall terminate, by operation of law, upon the death of either party or the remarriage of the payee, or upon modification of the award by at the Court upon proper application. When the facts and circumstances of a case warrant it, the Court may award “non-durational” maintenance, that is, the payments will continue until one of the terminating events set forth above (death or remarriage) and not after a prescribed time. 

The details applicable to any case in which post-divorce maintenance payments are an issue are many and varied. 

The experienced matrimonial attorneys at O’Connell & Aronowitz are ready and able to advise you on all aspects of post-divorce maintenance payments. Call us at 518-462-5601 or contact us online here.