Spousal Support

New York – Spousal Support and Spousal Maintenance

Spousal support is a term utilized by the Family Court representing financial support paid by spouses or former spouses to one another. Spousal maintenance is the term utilized by the Supreme Court in a divorce proceeding meaning the same thing. One could say that spousal support is awarded while the parties are still married and spousal maintenance is awarded after the parties are divorced.

Legally married persons have an obligation to support one another during the marriage, during the pendency of a divorce and possibly even after a divorce. Such obligation is not absolute and typically requires a showing of need for such support and the ability of the other spouse to pay.

Spousal maintenance/support is an issue that can be addressed within a divorce proceeding filed in the Supreme Court or can be addressed as a separate and distinct issue in the Family Court. Family Court is an option for a spouse who seeks an initial order of support when divorce is not an issue or enforcement or modification of an existing support agreement or court order.

Supreme Court – Spousal Maintenance

Spousal maintenance laws in a divorce proceeding have been the subject of recent change and controversy in New York State as the legislators attempt to resolve years of inconsistencies and the unpredictable nature in which the Courts make spousal support awards. Effective October 13, 2010, a new formula for determining the amount of temporary spousal maintenance to be paid was enacted.   Temporary maintenance is support awarded to a needy spouse during the actual divorce process and is paid by the higher income spouse to the lower income spouse. Income available for spousal support is defined in the same way as income under the Child Support Standards Act.

Temporary maintenance terminates upon the issuance of a final award of maintenance which typically occurs at the conclusion of the divorce. A final award unlike the temporary award is currently not based upon the formula approach; it is discretionary and determined by the interpretation of the case specific facts and the twenty statutory factors of the Domestic Relations Law. Final orders will either be for a fixed amount of time, called durational maintenance, or for the lifetime of the recipient spouse.

A temporary spousal maintenance award can also include numerous other types of support obligations payable by the monied-spouse depending on the lifestyle of the parties and the available resources. These additional awards can include, health/life/auto/home insurance premiums, lifestyle expenses, lease and loan payments,  salaries, and other normally occurring expenses not contemplated under the temporary maintenance guidelines.

Family Court – Spousal Support

Unlike temporary support in the Supreme Court, the new formula approach  does not apply to spousal support ordered by the Family Court. In Family Court the judge attempts to award a fair and reasonable sum based on the circumstances of the respective parties.  It is unclear whether there will be shift by the judiciary to consider the newly-enacted formula guidelines in setting their pre-divorce support orders.

Modification of Spousal Support

All Orders of spousal support or maintenance including agreements to pay support are typically subject to modification upward or downward based upon a change in circumstances of parties from the date of the order or agreement. Different criteria exist for determining whether a modification will be granted based upon whether the support obligation was pursuant to an agreement or by order of the court.

The typical modification proceeding is initiated when one of the parties suffers a loss of income, or incurs unanticipated expenses that were not contemplated during the support proceeding. It is best to file for a modification as soon as possible after the occurrence of one of these types of events, as the payor will generally not be relieved of the underlying obligation until a petition is filed in court and is successful of the merits of the modification request.

Spousal support and maintenance issues can be daunting, especially with the enactment of the new laws for determining temporary maintenance under the formula approach. Whether you are seeking support or are the subject of a support proceeding, we can assist you.

At the Law offices of David Smoren, PLLC we have successfully handled all aspects of spousal support and maintenance proceedings from inception to conclusion. Whether it is related to a divorce proceeding, separation agreement or family court matter we have the experience to help you. 

Call us today at 718 225-6700 for a free phone consultation, or to arrange for an office consultation to discuss your options or simply post a comment or question on the contact form.