Where Can I Find The Right Lawyer
It is essential to have the assistance of an experienced New York family lawyer when petitioning for maintenance in order to avoid any potential mistakes. Obtaining maintenance is often the difference between continuing to live as you did during your marriage or struggling to survive paycheck to paycheck.
It is essential to file a petition for maintenance that is free from mistakes. Having an attorney on your case may mean the difference between obtaining maintenance payments and having to start over without financial help.
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.
How Do New York Courts Calculate Spousal Support For High Earners
Although the paying spouse’s income is an important consideration when awarding spousal support, any income the spouse makes over $203,000 won’t affect the amount suggested by New York’s spousal support calculator. In other words, the court won’t consider income over $203,000 in the calculation unless the judge finds a reason to increase the award.
A judge can increase the award above the cap when they find that the guideline obligation is unjust or inappropriate, based on the same factors it considers when deciding to award alimony . If the judge finds that a deviation is appropriate, they must specify in a written order the adjusted amount, the reasoning for the amount, and the factors considered.
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How Is Alimony Paid In New York
The court usually orders the paying spouse to pay support periodically . Spouses can create an agreement for payment, like a monthly direct deposit, and the court will not interfere. However, in cases where the parties can’t agree on a payment method, the judge will usually create an income withholding order to ensure timely payments each month.
Income withholding allows the paying spouse’s employer to deduct the payments directly from employee wages and forward them to the recipient spouse. If a spouse fails to pay, the supported spouse can file a complaint with the court and request assistance collecting the past-due payments.
In some cases, parties will agree to a lump-sum payment of support, where the payor will provide the full amount of maintenance on a specific date. Lump-sum support is helpful for supported spouses because there’s no need to wait for a check every month. However, most couples aren’t in a financial position to provide a large sum at the end of a divorce.
Spousal Support Or Maintenance
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What is spousal support or maintenance?
Spousal support is court ordered money paid to support a spouse. Maintenance or temporary maintenance is support ordered to be paid for an ex-spouse, or while a divorce case is pending in court. Since October 26, 2015, New York has had a presumptive formula to decide how much support or temporary maintenance should be paid. On January 25, 2016, a new law took effect setting presumptive amounts and length of time for maintenance after a divorce. These guidelines are presumed to be the correct amounts and time periods, but the court still has discretion to order different amounts if the court explains why.
Spousal support or maintenance used to be called alimony and this may still be used in some other states, but this has not been the legal term used in New York for many years.
Where are spousal support orders given?
Spousal support orders are usually given in Family Court, although temporary maintenance payments can be ordered as part of a divorce in Supreme Court. The term “support” is most often used in Family Court, while the term “maintenance” is used in the Supreme Court which handles divorce cases.
Maintenance is ordered by the Supreme Court in a divorce action. Usually the Family Court will have jurisdiction to modify or enforce that order, after the divorce is completed.
How is the amount of spousal support or maintenance determined?
What about health care?
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Strategy : Prove They Dont Need It
Some spouses who are simply being vindictive seek to gain alimony payments, even if they do not need the money to maintain their standard of living. For example, does your ex have access to a large monetary sum, like a trust fund or stock portfolio? Do they have an inheritance or savings account? If so, them being unemployed may not affect their ability to transition to a single lifestyle. Your ex may not even need an alimony payment to make this lifestyle change.
Be sure to investigate whether or not your spouse has any assets in their name that would keep you from having to make alimony payments. To do this, you may wish to hire a professional forensic accountant to help you track down this asset or assets. While accountants definitely charge a premium for their services, your avoidance of lengthy and costly alimony fees will be well worth the price.
Effects Of Granting Or Denying A Divorce
If a divorce is granted, the court has the discretion to award either durational or non durational maintenance. Prior to the 2016 amendment to the maintenance laws, if a divorce is denied for any reason, and the court makes an award of maintenance, then the court may award only nondurational maintenance. See Garver v. Garver, 253 AD2d 512 .
Garver was decided prior to the 2016 amendment of DRL 236 B. However, the revised statute specifically states that it applies only to post divorce awards. Since DRL 236 B terminates upon judgment, including a judgment that denies a divorce, it does not appear that section 6 would apply.
Given the adoption of no fault divorce under DRL 170, the denial of a divorce will rarely be a factor.
In the rare instances where a divorce is denied, the Supreme Court would likely use Family Court Act 412 to fashion an award of maintenance.
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How To Avoid Alimony
This article was co-authored by Clinton M. Sandvick, JD, PhD. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013.There are 8 references cited in this article, which can be found at the bottom of the page. This article has been viewed 45,222 times.
When divorcing spouses are in highly unequal positions, alimony or spousal support becomes an issue. Where the spouses are equally situated financially, there is generally no alimony awarded. Knowing what types of alimony your state recognizes and the things that trigger them can help you structure your divorce and develop strategies the minimize the chance you may have to pay alimony.
How To Avoid Paying Alimony In New York
You can avoid paying alimony in New York if there is an agreement between you and the other divorcing party to waive payments or not to pursue maintenance in court. You can also avoid alimony payments if you sign a prenuptial agreement enforcing the waiver of alimony rights. A prenuptial agreement is a premarital contract or agreement between couples that was signed prior to marriage enabling the parties involved to control and select the legal rights acquired upon marrying and what happens when the marriage ends by death or divorce.
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How Do New York Courts Calculate Postdivorce Alimony
New York courts use a calculator to compute a standardized, suggested amount for postdivorce maintenance.Judges have discretion to decrease or increase the award if the guideline amount would be unjust or inappropriate.
Typically, judges consider a variety of factors in addition to the guidelines, including:
Determine How Long Maintenance Will Last In New York
Then, of course, everyone wants to know what the duration is. New York has guidelines as to the duration of maintenance as well. For marriages from 0 to 15 years, it is 15-30% of the duration of the marriage. If youve got a 10-year marriage, it would be 1.5 to 3 years of maintenance. If you have a 15-20-year marriage, it is 30-40% of the duration of the marriage. And more than 20 years, it is 35-50% of the duration of the marriage.
One thing to keep in mind with regard to all of the calculations is that they are all subject to deviation based on different factors. I mentioned them before, ages, health, contributions to the marriage, differences in earning capacities. There is also a catch-all, so the court can really take into consideration anything, so there is a lot of room for deviation, especially in higher-income cases.
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How Do You Determine Alimony Amount
The guideline states that the paying spouses support be presumptively 40% of his or her net monthly income, reduced by one-half of the receiving spouses net monthly income. If child support is an issue, spousal support is calculated after child support is calculated.
Making Child Support And Spousal Support Or Child Support And Spousal Maintenance Payments Together
A common situation in a divorce occurs when one spouse must make both child support and spousal support payments, or, after a divorce, makes both child support and child maintenance payments. Courts consider these two payments separately when determining the proper amounts to require. However, the spousal support and the spousal maintenance payments can affect child support payments.
HOW SPOUSAL SUPPORT, OR ALIMONY, PAYMENTS AFFECT TAXES
With the Tax Cuts and Jobs Act of 2017, the IRS no longer allows alimony or maintenance payments to be deducted unless the divorce or separation agreement was finalized prior to January 1, 2019. For divorce or separation agreements signed on or after that date, spousal support and spousal maintenance payments are not deductible. This also applies to divorce or separation agreements already in place that were modified on or after that date, if the changes were to the terms of the spousal support or maintenance payments. Additionally, spousal support and maintenance payments are not considered taxable income at the federal level for receiving spouses for agreements executed on or after January 1, 2019.
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How To Get Out Of Spousal Support
In most situations, some divorces result in one spouse making steady spousal support payments to their ex-partner. After a while, many paying spouses want to get out of paying more alimony. Fortunately for them, it can be possible to make changes to the alimony arrangements, but that is dependent on the terms of the divorce and recent or relevant circumstances.
Not all types of alimony are meant to be permanent. For example, if the spousal support is given so that the receiving spouse has time to receive proper training/finish their education to get a new job, the alimony should end when they are able to begin supporting themselves. If the paying spouse wants to work out a way to avoid paying alimony of any type, it must be dealt with in the court.
As well-known and popular the idea of alimony is, statistics show that only 15 percent of all divorces cases end with some sort of spousal support court order. If the spousal support is to be paid in one lump sum, this payment is not up for debate concerning reduction or elimination. However, there are ways to reduce or end alimony altogether.
Here are some of the common successful arguments used:
You, the paying spouse, is suddenly and without choice, becomes unemployed
An illness or the like impedes the paying spouse to work, and therefore make money
The receiving spouse is living with someone in an intimate relationship, so they are being supported elsewhere.
How Would The Calculations Work On The Second Example
Lets say the husband makes $100,000, and the wife makes $20,000. Were going to do this with no children involved.
The deductions for Social Security and Medicare are taken from both parties. Thats 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 husbands case, the adjusted income would be $92,350. In the wifes case, it would be $18,470. Those are the numbers we work from.
Then, on the husbands side, well take 30% of his income, up to including the cap, minus 20% of the payees income. The husband would have $27,705 on his side. Then, the wifes 20% of her income would be $3,694. You subtract them, and you have $24,011. Thats result number one.
The second calculation is the payors income, up to the cap. Its $92,350, plus the payees income of $18,470.
That equals a total income combined of $110,820. We use 40% of that, which is $44,328, minus the payees 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. Thats how it breaks down without children.
I am not going to get into it with children, because thats going to blow your head apart. Its 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.
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Strategy : Change Up Your Lifestyle
Youve likely already made some major changes in light of your divorce. It is rare that the higher-earning spouse will be given alimony payments, so it is a good time for you to consider just how much money you truly need to cover your expenses each month. If you earn more than your spouse, it is likely you will be responsible for making alimony payments. To avoid this financial conundrum, consider downgrading a lower paying job, for example, may be the way.
Downsize your income and live lean. You will need to carefully plan and budget your way through, but a little work and help from friends and financial gurus will save you a lot of headache about alimony.
How Do I Qualify For Alimony
When or not a spouse can receive maintenance in New York depends greatly on their financial status and their need for financial support. This is especially true if they are seeking temporary alimony, which is only intended to provide support while the couple is going through the divorce process.
A spouse may also qualify for maintenance if they and their spouse have already agreed that one spouse should receive maintenance. It is important to note, however, that this agreement must be in writing in order to be enforceable.
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Expert Tactics To Avoid Paying Alimony
Alimony can cause you serious financial strain. Being newly single and having only one income means youve already had to make big changes to your monthly budget and lifestyle. Some individuals may do something sneaky, like devise clever plans to get around the strain that alimony causes on their finances.
However, tempting as this may be, it is important you approach the matter with care, concern, and ethics. This way, you can avoid any legal ramifications that may result from attempting to avoid your soon-to-be ex-spouse.
The question is, how can you legally avoid handing over loads of money to your ex each and every month?
Following are nine tactics you can use to keep more of the money you earn and avoid paying alimony.
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 youre a W-2 wage-earner, theres that.
If you receive interest from investments, thats income.
If you rent part of your house to a tenant, thats income. If you own properties where you have multiple tenants, thats 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 theres something wrong.
The court can look at that and say, No, no, no, no, no. You dont 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.
Its a broad scope. Anything that comes to you by way of income is included.
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