You built a life together. Now you’re splitting it apart, and one of the most pressing questions on your mind might be: Who pays whom, and for how long? Whether you are worried about how you will cover your bills once the divorce is final, or you are the higher-earning spouse bracing for what a judge might order, this question matters enormously.
The good news is that New York has a fairly structured system for working through it. The challenge is that “structured” does not mean “simple.” There are formulas, income caps, discretionary factors, tax wrinkles, and termination rules that can all shift the outcome in ways that catch people off guard.
First Things First – What Is “Alimony” Called in New York?
New York stopped using the word “alimony” in its statutes decades ago. Today, the two terms used are spousal support and spousal maintenance. The informal word “alimony” still appears in everyday conversation and in IRS materials, but inside a New York courtroom you will hear “maintenance” or “support.”
The controlling statute is New York Domestic Relations Law (DRL) § 236(B). The 2015 amendments to that law significantly changed how both temporary and post-divorce maintenance are calculated by introducing clear formulas in place of a system that had been far more unpredictable. The effect of remarriage on ongoing maintenance obligations is addressed separately in DRL § 236(B)(6)(c) and DRL § 248, which set out the rules for when maintenance must end and when a court may terminate it.
The Two Types of Spousal Maintenance in New York
New York courts separate maintenance into two distinct categories, and it is important to understand the difference because each type is calculated under a different section of the law. One applies while the divorce is still underway. The other applies only after the divorce is finalized. How your judge approaches each stage can have a significant impact on your financial picture.
Temporary Maintenance (Pendente Lite)
Once a divorce action is filed in New York Supreme Court, either spouse can request temporary maintenance right away. The court does not wait for a full trial to address the financial imbalance between the parties. Under DRL § 236(B)(5-a), temporary maintenance is calculated using a statutory formula intended to keep the financial status quo while the case is pending.
The court does not award this automatically. The lower earning spouse must request it, and the court will then calculate a guideline amount based on both parties’ incomes. Temporary maintenance ends no later than the date the final judgment of divorce is entered, or upon the death of either party, whichever occurs first.
Post-Divorce Maintenance
Post-divorce maintenance refers to the support ordered as part of the final judgment of divorce. It is calculated separately from any temporary order. Many people assume the temporary amount simply carries over, but that is not how New York law works. Post-divorce maintenance is governed by DRL § 236(B)(6), which requires a fresh analysis using the guideline formula and the statutory factors.
Post-divorce maintenance can be durational, which means it has a defined end date, or non-durational, which means it continues indefinitely. Non-durational awards are typically reserved for longer marriages where one spouse is unlikely to become financially self-supporting because of age or health limitations.
How Does New York Calculate the Amount?
New York uses a set of statutory formulas to determine the guideline amount of spousal maintenance. The court applies one of two formulas depending on whether the paying spouse is also paying child support to the same spouse. These formulas appear in DRL § 236(B)(6) for post-divorce maintenance and in DRL § 236(B)(5-a) for temporary maintenance.
When the maintenance payor is NOT paying child support:
- Subtract 20 percent of the payee’s income from 30 percent of the payor’s income.
- Subtract the payee’s income from 40 percent of the combined income.
- The court uses the lower of the two results as the guideline amount.
When the maintenance payor IS also paying child support:
- Subtract 25 percent of the payee’s income from 20 percent of the payor’s income.
- Subtract the payee’s income from 40 percent of the combined income.
- Again, the court uses the lower of the two results.
The guideline formulas apply only up to an income cap that New York adjusts every two years based on changes to the Consumer Price Index. The current cap is published on the New York Courts official matrimonial legislation page. Income above that cap is not automatically ignored. The court must consider the statutory factors to decide whether any additional amount of maintenance is appropriate, but the guideline formula itself is applied only up to the capped amount.
You can run a rough estimate using the NY Courts Maintenance and Child Support Calculator, though the figure it produces is a starting point, not a final answer.
Can a Judge Change the Formula Amount?
Yes. The formula produces a guideline amount, not a fixed rule. A judge may deviate if applying the guideline would be unjust or inappropriate. For post-divorce maintenance, DRL § 236(B)(6)(e) requires the court to consider a set of statutory factors when deciding whether to adjust the amount or duration. Temporary maintenance has a similar deviation standard under DRL § 236(B)(5-a).
These factors include:
- The age and health of both parties
- The present and future earning capacity of each spouse
- The length of the marriage
- Whether one spouse delayed or gave up career opportunities to support the other or to care for children
- The standard of living established during the marriage
- The need of one party to incur education or training expenses
- The existence and duration of pre-marital joint household or a prior marriage
- Acts of domestic violence by one party against the other
- The tax consequences of any maintenance award
- Contributions and services of the party seeking maintenance, including as a spouse, parent, wage earner, or homemaker
- Wasteful dissipation of marital property
- Transfers made in contemplation of divorce without fair consideration
- Any other factor the court finds just and proper
If a court deviates from the guideline amount or duration, it must state the reasons in writing or on the record. This requirement is mandatory.
How Long Does Spousal Maintenance Last?
Duration is often one of the most contested issues in a divorce. For post-divorce maintenance, New York courts look to an advisory schedule in DRL § 236(B)(6)(f) that ties a suggested range to the length of the marriage.
- For marriages lasting up to 15 years, the suggested duration is 15 percent to 30 percent of the length of the marriage.
- For marriages lasting more than 15 years but less than 20 years, the range is 30 percent to 40 percent.
- For marriages lasting 20 years or more, the range is 35 percent to 50 percent.
These ranges are flexible. Judges may go higher or lower depending on the statutory factors. In long-term marriages where a spouse has been out of the workforce for many years and has limited ability to become financially independent, courts may award non-durational maintenance that continues indefinitely. In addition, the time period in which the temporary maintenance is paid is factored into the duration of post- divorce maintenance.
When Does Maintenance End?
Post-divorce maintenance terminates automatically in several situations. Under DRL § 236(B)(6)(c) and DRL § 248:
Death of either party. Maintenance ends immediately if either the payor or the payee dies.
Remarriage of the recipient. Under DRL § 236(B)(6)(c), maintenance terminates when the payee remarries, whether the marriage is valid or invalid. DRL § 248 also states that once the payor shows proof of the payee’s remarriage, the court must modify the judgment to stop future payments. One important caveat: if maintenance was set by a separation agreement and the agreement does not list remarriage as a termination event, the obligation may continue despite remarriage. Careful drafting is essential to avoid unintended results.
Cohabitation. Under DRL § 248, a payor may ask the court to reduce or terminate maintenance if the recipient is habitually living with another person and holding themselves out as that person’s spouse. The statute still uses the older terms “husband” and “wife,” but at least one New York court has interpreted the provision in a gender-neutral way to preserve its constitutionality.
Expiration of the durational period. For durational awards, maintenance ends once the court-ordered time period runs out.
What About Taxes?
This is an area where many people get caught off-guard, because federal and state rules currently point in different directions.
Federal taxes. For divorces finalized on or after January 1, 2019, the Tax Cuts and Jobs Act of 2017 changed the rules entirely. Maintenance payments are no longer deductible by the paying spouse on federal returns, and they are not counted as taxable income by the recipient.
New York State taxes. New York did not follow the federal change. For state income tax purposes, maintenance payments are still deductible by the payor and taxable income to the recipient. This split-filing situation is something every divorcing couple should discuss with a tax professional before finalizing any settlement.
Can Maintenance Be Modified Later?
In most cases, no. However, in the event of extraordinary circumstances, a court could modify maintenance.
Can Spouses Agree on Maintenance ?
Absolutely. Many couples negotiate maintenance as part of a separation agreement or divorce settlement. Under DRL § 236(B)(3), properly executed written agreements are enforceable and allow spouses to set their own terms for amount, duration, and termination. This includes the option of agreeing that no maintenance will be paid.
To be enforceable, these agreements must meet specific legal requirements. They must be in writing, signed by both parties, and acknowledged in the same manner as a deed. An agreement that is unconscionable at the time it was made may not be enforced.
Key Takeaways
- New York uses the term “spousal maintenance” rather than “alimony,” governed primarily by DRL § 236(B).
- There are two types of maintenance: temporary maintenance during the divorce and post-divorce maintenance after the judgment. Each is calculated separately under different provisions of the statute.
- New York applies a statutory formula to determine a starting amount, using the parties’ incomes up to a cap that is adjusted every two years by the Office of Court Administration.
- Duration is guided by an advisory schedule tied to the length of the marriage, but judges have broad discretion to adjust both the amount and duration based on statutory factors.
- Maintenance typically ends upon the recipient’s remarriage or the death of either party. Cohabitation may also justify termination or reduction under DRL § 248, but it requires a court application and proof.
- Federal and New York State tax treatment of maintenance payments differ. Maintenance is not deductible or taxable at the federal level for post-2018 divorces, but it remains deductible to the payor and taxable to the recipient for New York State income tax purposes.
- Spouses may set their own maintenance terms through a properly executed written agreement, as long as it meets statutory requirements and is not unconscionable.
Frequently Asked Questions
Q: Does fault matter when a New York court awards maintenance?
A: Generally, no. New York is a no-fault divorce state, and fault is not a primary factor in awarding maintenance. However, courts may consider domestic violence as part of the statutory factors when determining the amount or duration.
Q: Is maintenance the same thing as child support?
A: No. Spousal maintenance and child support are separate obligations governed by different laws and formulas. The maintenance calculation may change if the payor is also paying child support to the same spouse.
Q: What if my spouse earns more than $241,000?
A: The formula applies only up to the statutory income cap, which New York adjusts every two years. For income above that amount, the court may award additional maintenance based on the statutory factors. The court must explain its decision if it awards more than the formula result.
Q: Can a stay-at-home parent get maintenance even if the marriage was short?
A: Yes. The court considers many factors, including caregiving responsibilities and earning capacity. A short marriage does not automatically prevent a maintenance award.
Q: What happens if my ex-spouse stops paying maintenance?
A: You can enforce the order through the court. Common remedies include income execution under CPLR § 5241 and, in some cases, contempt proceedings.
Q: Does maintenance work the same way in Suffolk County as in other New York counties?
A: Yes. The same New York statutes apply statewide. Local courts, including Suffolk County Supreme Court, follow the same legal framework, though individual judges have discretion in applying the statutory factors.
Talk to a Donato Law Attorney
Spousal maintenance is one of the most financially significant issues in any divorce. Whether you are concerned about covering your expenses after time away from the workforce or you are the higher earning spouse planning for the future, the stakes are real and the rules can be complex.
At Donato Law, our family law attorneys serve clients throughout East Islip, Suffolk County, and the surrounding communities on Long Island. We take the time to review your specific financial situation and provide a clear, realistic understanding of what you may expect, not a one size fits all answer.
Contact us today through our website to schedule your free consultation. Your financial future after divorce deserves careful planning, not guesswork.
