Maintenance / Spousal Support Handout (for clients)

Spousal Support

It is not unusual for one spouse to continue supporting the other for some time following a divorce, particularly when one spouse has been unemployed or under employed.  You may have heard this referred to as alimony, maintenance or spousal support – they all mean the same thing: the higher earner makes periodic payments to the lower earner for a certain, specified period of time.

 The purpose of spousal support is to help the receiving spouse become financially independent, and to have a lifestyle somewhat approaching the standard of living that the parties shared during the marriage.  The questions that arise, of course, are “how much?” and “for how long?” We will explore these below.

New York has a formula for determining the “guideline amount” and “guideline duration” of maintenance, called the Maintenance Guideline Law (“MGL”).^[1]  However, as the name would suggest, the MGL is only a guideline, and there are several factors listed in the statute which are given as reasons that spouses may deviate from the guideline amount.  

It is important to understand what the MGL says so you can have a frame of reference. However, mediation and collaborative process allow you to exercise more control over your arrangement.  For that reason, we also look at your budgets.  Our goal is to craft a support agreement that both parties find fair and equitable, and that is manageable for both parties.

The payor is the person who is paying spousal support – this is always the person who makes the higher income, regardless of gender.  The recipient is the person who is receiving spousal support.  

The formula includes a cap on the payor’s income – as of this writing, it is $192,000 per year.  In other words, if the payor earns $200,000 or $300,000 per year, only the first $192,000 will be used in determining guideline maintenance. 

The court (and parties in a mediation or collaborative process) must also consider a number of factors when considering what is a fair outcome.  These factors, which are enumerated in the statute, include the following:

•       The age and health of parties;

•       The present or future earning capacity of parties;

•       The need of one party to incur education or training expenses;

•       Wasteful dissipation of marital property;

•       The existence and duration of a pre-marital joint household or a pre-divorce separate household;

•       Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment;

•       The availability and cost of medical insurance;

•       The care of children (including stepchildren and disabled adult children), elderly parents or in-laws provided during the marriage that affects a party’s earning ability;

•       The tax consequences to each party;

•       The standard of living the parties established during marriage.

•       The reduced or lost earning capacity of the payee as a result of having foregone education, training, employment or career opportunities during marriage;

•       The equitable distribution of marital property and the income thereon;

•       The contributions and services of the payee as spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

•       Any other factor that a court would consider to be just and proper.

Perhaps the most significant of these is “The standard of living the parties established during marriage.”  While it is most likely not realistic that either party will have the same standard of living, our hope is that we can come up with a plan so that both parties will have something similar.  You might note that, unless there has been a significant “wasteful dissipation of marital assets,” fault is not generally a factor in determining the amount or duration of spousal support.  

Note: Spousal support was traditionally taxable to the recipient and tax-deductible to the payor. This was true when the formulas were created.  However, the federal tax law changed, and beginning in 2019, spousal support no longer has special tax treatment.  NYS tax law still follows the old guidelines, which makes it even more confusing.  In other words the payor can still deduct the amount of spousal support paid from NYS taxes, and the recipient must pay NYS taxes on that same amount. But neither person declares it on federal taxes.  My takeaway is that you might want to use an accountant to prepare your taxes if spousal support is involved.

Our website has an excellent calculator which you can use to determine how the MGL would apply to your situation.  However, it is also important to figure out what is realistic for you and your spouse.  For this reason, we look at your budgets, both to determine need and the availability of resources.  

When does Spousal Support End?

Spousal support generally ends when either party dies, when the recipient gets remarried, or at a date specified in the Agreement.  It is not unusual for a separation agreement to specify that spousal support will end when the recipient is living with a new romantic partner, whether or not they are legally married. 

When is Spousal Support Modified?

If spousal support is going to continue for several years, you might want to include provisions for how the amount would change – for instance, if the payor’s income goes down or the recipient’s income increases by more than a certain percentage.   In order to do this, you would have to willingly exchange tax returns or other proofs of income periodically.    Parties who are close to retirement or who expect to start receiving Social Security may want to take this into consideration. There may also be special provisions added for parties whose income varies widely from year to year.  Crafting your own agreement allows you to consider your family’s special circumstances.