What are the grounds for divorce? What is "No Fault Divorce"?

In order to obtain a divorce, the party seeking the divorce must establish "grounds" for the divorce.  Stated differently, each state determines what reasons they believe justify a divorce.

New York has seven different grounds for divorce:

• Cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
• Abandonment of the plaintiff by the defendant for a period of one or more years.
• Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
• Commission of an act of adultery.
• Each spouse having lived separate and apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
• Each spouse having lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
• The relationship between the spouses has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath, and the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce

 DRL § 170.

It is tremendously important to discuss the final grounds for divorce, commonly referred to as "irretrievable breakdown for a period of six months or more," or "no fault divorce."   It was passed into law in 2010, only a few short years ago, and has made proving grounds tremendously easier.  Rather than having to prove adultery or cruel and inhuman treatment, all that is required is for one spouse to swear, under oath, that the relationship between the spouses has been irretrievably broken for a period of at least six months.  This has saved countless unhappy couples a great deal of time, expense, and emotional trauma in having to re-live and prove the couples' reasons for wanting a divorce.

Although the facts of a particular case may justify obtaining a divorce on grounds other than irretrievable breakdown, irretrievable breakdown has become the most frequently used grounds for obtaining a divorce.

If you have any questions or concerns, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.

Can I Bring a Divorce Action in New York? What is Residency?

Depending on what side of the litigation a spouse is on, New York's laws can be much more generous than the laws of other states. 

In order to prevent people from moving from state to state for the sole purpose of picking a state with laws more favorable to them, i.e., "forum shopping," New York requires that a plaintiff establish a sufficient connection to the State of New York  in order to commence a matrimonial proceeding in New York.  Proving this connection to New York is commonly referred as establishing "residency."

Residency can be met by proving that:

• The parties were married in New York, and either party is a resident of New York when the action is commenced and has been such a resident for a continuous period of one year immediately prior to commencement proceeding, or
• The parties have resided in New York as a married couple, and either party is a resident of New York when the action is commenced and has been such a resident for a continuous period of one year immediately prior to commencement of the proceeding, or
• The grounds for the action occurred in New York, and either party has been a resident of New York for a continuous period of one year immediately prior to commencement of the proceeding, or
• The grounds for the action occurred in New York, and both parties are residents of New York at commencement of the proceeding, or
• Either party has been a resident of New York for a continuous period of at least two years immediately prior to the commencement of the proceeding .

 DRL §  230.  

This then begs the question, who is a  "resident" of New York?

Prior to 1976, the term "resident" meant "domiciliary"; however, after an amendment to DRL § 231, "resident" has been regularly interpreted to mean either "domiciliary"  or "physical resident." Guedes v. Guedes, 45 A.D.3d 533 (2d Dept. 2007). 

So, who is a domiciliary?  Who is a physical resident?

A domiciliary of New York is a person whose "domicile" is located within New York.  "A person can have but one domicile at any given time.  Every one acquires a domicile of origin at birth, which continues until effectively changed."  In re Sorrentino's Will, 71 N.Y.S.2d (Surrogate's Ct., King's Cty. 1946).  "In order to effect a change [of domicile] there must have been proof that the [individual] had freely chosen another domicile and that this choice was followed by physical presence at a dwelling place and the intention to make it a home" In re Johnson's Will, 259 A.D. 290 (2d Dept. 1940).  Thus, to change a domicile, their must be both physical presence at the new domicile and an intent to make that place their permanent residence.

Whether a person is a physical resident "depends upon whether he [or she] has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year.” Wittich v. Wittich, 210 A.D.2d 138 (1st Dept. 1994) (quotations and citations omitted). This can be a rather complicated issue and will involve a weighing of many facts.

For help determining whether residency has been satisfied in your case, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.

New York Equitable Distribution: Marital Property, Separate Property, and Liability for a Spouse's Debts

QUESTION:  WHAT IS MARITAL PROPERTY, SEPARATE PROPERTY, AND CAN I BE HELD LIABLE FOR MY SPOUSE'S DEBTS?


I.  What is Equitable Distribution of Marital Property?  

During a marriage, each spouse will usually accumulate assets in his or her name.  Frequently, there will also be assets titled in the name of both spouses, jointly.  "Equitable distribution" is the equitable, and not necessarily equal, division of those assets between the spouses pursuant to a matrimonial action.

Absent an agreement between the parties, a court will determine each parties respective rights to "marital property" and "separate property," and will provide for the disposition thereof in the final judgment. DRL 236-B(5)(a).  Marital property "shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties," whereas separate property shall remain that spouse's property. DRL 236-B(5)(b), DRL 236-B(5)(c).


II. What is Marital Property?  What is Separate Property?

All property can be divided into either marital property or separate property.

Marital property is “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.” DRL 236-B(1)(c) (emphasis added).  Marital property does not include any separate property. Id.  It is important to note that, in determining whether the asset is marital property subject to equitable distribution, it does not matter which spouse holds title.  

Separate property is any property:

• acquired before the marriage;
• acquired (inherited) by bequest, devise, or descent;
• gifted to one spouse by someone other than the other spouse;
• representing compensation for personal injuries (except to the extent that the claim represents deferred compensation earned during the marriage);
• acquired in exchange for separate property;
• representing the increase in value of separate property during the marriage, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;
• described as separate property by written agreement of the parties pursuant to DRL 236-B(3).

DRL 236-B(1)(c).


The courts have developed a presumption that property acquired during a marriage, and prior to commencement of a matrimonial proceeding or the execution of a separation agreement, is marital property.
 A spouse attempting to prove that such property is actually separate property must do so by by clear and convincing evidence. Fields v. Fields, 905 N.Y.S.2d 783, 785 (N.Y. 2010) (citing, DeJesus v. DeJesus, 665 N.Y.S.2d 36 (N.Y. 1997)).

This presumption is supported by the legislative intent that the definition of marital property be read broadly, while separate property be construed narrowly. Price v. Price, 511 N.Y.S.2d 219, 222 (N.Y. 1986) (citing, Majauskas v. Majauskas, 463 N.E.2d 15 (N.Y. 1984)).

Remember: marital property can be almost anything, so think creatively

• Accumulated vacation days over the years?  Marital property.  
• Tax exemptions for the children in the years following divorce? Marital property (technically).     
• Escrow account associated with mortgage on residence for payment of next year's property taxes?  Marital property.

III.  Can Separate Property Transform into Marital Property? Transmutation & Commingling

“[S]eparate property which is commingled with marital property or is subsequently titled in the joint names of the spouses is presumed to be marital property.” Gately v. Gately, 113 A.D.3d 1093, 1094 (4th Dept. 2014) (internal quotations omitted).  In other words, separate property can be transformed into marital property by way of commingling or transmutation.  So, what is commingling and transmutation?

Transmutation is where separate property in one spouse's name is transferred into or exchanged for property held in both parties' names, that is called "transmutation."  By putting separate property into a joint account, it is presumed that the titled spouse intended to give an interest in the property to the other spouse, i.e., there was "donative intent." See also, Banking Law 675(b).

The only way to overcome this presumption is by "clear and convincing evidence that the asset was titled jointly as a matter of convenience, without the intention of creating a beneficial interest, and that the funds in the account originated solely in the separate property of the spouse who claims the separate interest." Renga v. Renga, 86 A.D.3d 632 (2d Dept. 2011).

EXAMPLE:  John and Mary are married in 2001.  In 2002, John gets a $100,000 settlement from a lawsuit regarding a personal injury he sustained in 20000.  For simplicity sake, assume the entire $100,000 represents pain and suffering. On June 1, 2002, John deposits the $100,000 in a joint bank account with Mary. On June 20, 2002, John withdrawals $25,000 and moves it into an account in his sole name.  After numerous deposits of marital money and withdrawals for marital expenses, $50,000 remains in the account in 2010 when Mary and John file for divorce.  What is marital or separate property?  Most likely, the $25,000 John withdrew will remain John's separate property, as the deposit was in the account for such a short period of time.  However, the remaining $50,000 will likely be marital property, particularly considering the deposits of marital property.

Commingling is where separate property has been mixed in with marital property, regardless of who has title to the marital asset.  Once commingled, the party making the separate property claim must "trace the source of the funds [that he contended were separate property] with sufficient particularity to rebut the presumption that they were marital property." Bailey v. Bailey, 48 A.D.3d 1123 (4th Dept. 2008) (internal quotations omitted).

EXAMPLE: In 2000, Mary has a bank account in her sole name with a balance of $100,000.  John and Mary are married in 2001.  Mary is earning $200,000 per year and deposits her earnings into the bank account.  She makes frequent withdrawals for marital expenses, such as groceries and rent.  When John and Mary file for divorce in 2010, the account balance is $100,000.  The account is still in Mary's sole name.  Is the account marital property?  Almost certainly, yes, unless Mary can trace the deposits of marital money made during the marriage.

III.  How Will a Court Divide Marital Property?


In the context of equitable distribution, even where an asset is entirely marital, it is well-established that "equitable" does not always "equal." Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034 (N.Y. 1985);  Guarnier v. Guarnier, 155 A.D.2d 744 (3rd Dept. 1989); Ackley v. Ackley, 472 N.Y.S.2d 804 (4th Dept. 1984).

As noted by well-known author and expert in New York matrimonial law, Timothy Tippens, Esq.:

"The purpose of equitable distribution law is to achieve a fair allocation of marital property upon dissolution of the marital economic partnership. Towards this end, the statute bestows broad power, flexibility, and discretion on the matrimonial court. While there are those who urge that the statute should be amended to embody a mandate or presumption of equal division, the legislature has, to date, declined to adopt such a restriction"


1 New York Matrimonial Law and Practice, Section 3:29.

Again, the Courts have repeatedly held that the equitable distribution law does not require an equal division of martial property.  In fact, just because a particular asset is marital does not necessarily mean that a spouse is entitled to a distribution of any part of it.

The distribution of marital property will greatly depend on the type of asset (home, business, rental property, etc.) and the particular facts of a case.  For example, it is typical to have equal division of the marital residence.  On the other hand, based upon relevant case law, an unequal division of marital appreciation from a separate property business asset should be expected.

Furthermore, short term marriages without children tend to have distributions based upon each parties' economic contribution to the marriage, while distributions in longer marriages tend to be closer to 50-50. 

Nonetheless, in determining equitable distribution of the marital property, the court will consider the following factors:

• the income and property of each party at the time of marriage, and at the time of the commencement of the action;
• the duration of the marriage and the age and health of both parties;
• the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
• the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
• the loss of health insurance benefits upon dissolution of the marriage;
• any award of maintenance under subdivision six of this part;
• any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
• the liquid or non-liquid character of all marital property;
• the probable future financial circumstances of each party;
• the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
• the tax consequences to each party;
• the wasteful dissipation of assets by either spouse;
• any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
• any other factor which the court shall expressly find to be just and proper.

 DRL 236-B(5)(d).

While it is in the discretion of the court, a spouse may be entitled to certain credits during equitable distribution, including, but not limited to reimbursement for:

• marital money used to pay down the other spouse's separate property indebtedness (such as student loans, or expenses related to a separate property residence0
• separate property used to create a marital asset 

Thus, it is very important that a spouse seek an experienced matrimonial attorney will will guide the spouse through the nuances of equitable distribution law and advocate persuasively in furtherance of their best interests.


IV.  Equitable Distribution of Marital Debts

A.  Can a Court Distribute Marital Debts as Well? 

Simply put, yes.  In effecting equitable distribution of property, a court can also allow marital debts to be split between the parties. Nielsen v. Nielsen, 256 A.D.2d 1173 (4th Dept. 1998).  However, the court has discretion to refuse to take into consideration marital debts that are unproven. Fabricius v. Fabricius, 199 A.D.2d 695 (3d Dept. 1993).

In determining whether the debt is marital or separate, the court will look at “the nature of the debt itself, the manner in which and for whose benefit the funds were expended and the source of repayment.” Jonas v. Jonas, 660 N.Y.S.2d 487, 487 (3d Dept. 1997). In other words, “the proponent of sharing the debt has the burden of proof as to its obtainment and the ultimate purpose and use of the fund borrowed.” Oliver A. v. Christina A., 806 N.Y.S.2d 446 (Suffolk Cty, Supreme Ct. 2005). “Outstanding financial obligations incurred during the marriage which are not solely the responsibility of the spouse” are to be considered marital debts. Jonas, 660 N.Y.S.2d at 487.  “Where, however, the indebtedness is incurred by one party for his or her exclusive benefit or in pursuit of his or her separate interests, the obligation should remain that party's separate liability.” Id. at 488.

So, if there are marital debts, be prepared to prove, with documentation,

• the amount of the debt, 
• who the debt is owed to, and 
• for what purpose was the debt incurred.  

Marital debts are typically distributed in the same proportion as marital assets; however, marital debt can be allocated differently based on other factors, such as one spouse's ability to pay compared to the other, or one spouse's responsibility for incurring the particular obligation. Solomon v. Solomon, 10 A.D.3d 584 (1st Dept. 2004); Madori v. Madori, 201 A.D.2d 859 (3d Dept. 1994); Kuhn v. Kuhn, 134 A.D.2d 900 (4th Dept. 1987).

EXAMPLE: Marital debts tend to include student loans taken out during the marriage and credit card balances used to purchase groceries, clothing, and other necessities for the spouses and/or children.  On the other hand, marital debt will likely not include gifts made by one spouse to a paramour.

B.  Can a Court Distribute Income Tax Liability?

Although there have been exceptions, courts will usually distribute tax liabilities incurred during the marriage between the parties.

The general understanding seems to be that income tax liability incurred during the marriage is marital debt. Carlin v. Carlin, 217 A.D.2d 679 (2d Dept. 1995) (“any future liability arising from the parties' failure to file tax returns for several years is joint and several.”). In Cooper v. Cooper, the wife was responsible for one-half of federal tax liability incurred when husband filed amended income tax returns, but she was not responsible for any interest and penalties as a result of the filing of the amended tax returns, because the federal tax liability was incurred during the marriage and husband was responsible for delay in reporting income declared on those amended returns. 84 A.D.3d 854 (2d Dept. 2011).

A similar result was found in Conway v. Conway, in which a spouse was found to be responsible for one-half of the parties' tax obligation arising out of their failure to pay proper income taxes during their marriage. The rationale was that, since the wife shared equally in the benefits derived from failing to pay income taxes (i.e., there was ultimately more property in the marital estate subject to equitable distribution), she must share in the financial liability arising out of the tax liability. 29 AD3d 725,726 (2d Dept.2006)

It is important to note that in Capasso v. Capasso, while a wife was held equally responsible for the income tax debt resulting from her husband’s criminal tax evasion, she was not responsible for the $500,000 fine imposed on the husband after his criminal conviction for income tax violations, nor should she, as an innocent spouse, be liable for any “civil fraud or other penalties imposed by IRS on account of the acts” of her husband. 517 N.Y.S.2d 952 (1st Dept. 1987).

However, at least one court has found that it was appropriate to order a spouse, who bore a tax liability accumulated during marriage, to pay the liability when the spouse engaged in “economic fault.” Frey v. Frey, 68 A.D.3d 1052 (2d Dept. 2009). When the divorcing spouses of Frey v. Frey, “for the most part, maintained separate finances, and determined from the start of the marriage to file separate tax returns,” the trial court acted within its discretion to direct the defendant, “who failed to file tax returns throughout the duration of the marriage,” to bear the responsibility for paying income taxes, interest, and penalties. Id.

If you have any questions or concerns, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.

 

How Much is New York Maintenance (Alimony)? When Does Maintenance (Alimony) End in New York?

QUESTION:  HOW MUCH IS MAINTENANCE (ALIMONY)?

What other states call "alimony" or "spousal support," New York calls "maintenance."  However, there are two different types of maintenance and the lingo can be quite confusing.  Even more importantly, the Legislature has recently enacted, and is expected to enact even more, major changes to the statutes controlling maintenance.

In the context of a matrimonial action, there are technically two different types of maintenance: "Temporary Maintenance" and "Post-Divorce Maintenance."  Temporary maintenance is support to be paid by the monied spouse to the less monied spouse while a matrimonial proceeding is going on.  In other words, from date of commencement through the final order of support, which could be years, a less monied spouse may receive temporary maintenance.  Post-divorce maintenance is maintenance which is ordered by the final judgment and received after the proceeding is over.  

Due to the recent changes to the statute, there are significant differences between temporary maintenance and post-divorce maintenance.

I.  Purpose of Maintenance 

“The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting.” Gordon v. Gordon, 979 N.Y.S.2d 121, 123 (2d Dept. 2014) (citing, Sirgant v. Sirgant, 842 N.Y.S.2d 483 (2d Dept. 2007).  

Consideration of the predivorce standard of living is an essential component of evaluating and properly determining the duration and amount of the maintenance award….” Hartog v. Hartog, 647 N.E.2d 749, 757 (N.Y. 1995).  Therefore, courts “must consider the payee spouse's reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors, and then, in their discretion, fashion a fair and equitable maintenance award accordingly.” Hartog, 647 N.E.2d at 758.   

Ultimately, the award of maintenance should reflect a balancing of the payee's needs against the payor's ability to pay. Fischer v. Fischer, 606 N.Y.S.2d 494, 495 (4th Dept. 1993). 

 II.  Temporary Maintenance

 

As with post-divorce maintenance, there are two questions to be asked: one, how long should temporary maintenance last, and two, how much is temporary maintenance?

A.  How Long is Temporary Maintenance?

As we already know, temporary maintenance will begin sometime during the matrimonial proceeding after a motion is made and a temporary order issued.  It will end at the conclusion of the proceeding, when a final order is issued.  However, proceedings can go on for a very long time, and sometimes, even longer than the marriage itself!  For such short-term marriages, particularly those less than two years in length, courts tend to end temporary maintenance after a certain period of time, rather than letting it run naturally through the end of the proceeding.   

 B.  How Much is Temporary Maintenance?

The Legislature has provided a formula to determine the presumptively correct amount of temporary maintenance.  From there, the Court must determine whether additional maintenance is needed or to deviate from the presumptively correct amount of presumptive maintenance based upon the facts of the case.

 i.  Determining Each Spouse's Income

To calculate the presumptively correct amount of temporary maintenance, we must first identify each spouse's gross income.  We calculate gross income for the purpose of temporary maintenance in the same way we do for child support.  So, some of this may seem familiar.   

The statute requires the addition and subtraction of many different types of income.  All of the additions and subtractions can be found on Steps I, II, & III of the New York Child Support Worksheet.  However, to come up with a very rough estimate for most cases, take the spouse's adjusted gross income on their most recent income tax return, or the number in Box 5 of their most recent W-2 forms, and subtract the amount of FICA (i.e., medicaid and social security tax) actually paid by the spouse.  If you are having trouble determining how much FICA was owed and presumably paid, MoneyChimp.com provides a reliable and easy to use calculator.

ii. The Presumptively Correct Amount of Maintenance

The Legislature has provided a formula for determining the presumptively correct amount of temporary maintenance, but the formula only calculates temporary maintenance up to the statutory cap imposed on the monied spouse's income.  In other words, if the monied spouse's income is above the statutory cap (2014: $543,000), then there are additional steps which will need to be taken, as discussed below.

 

The EASY way to calculate temporary maintenance up to the statutory cap is by taking the incomes calculated above and putting them into Box 1 of this easy-to-use Support Calculator.  Alternatively, if you are more interested in knowing more about how the calculation is performed, the following calculator explains the calculation a little more thoroughly.  For those more mathematically inclined, the formula is:

The lesser amount of either:

(Payor's income x .30) - (Payee's income x .20)  

OR 

(.40)(Payor's income + Payee's income) - (Payee's income

When the payor's income is over the statutory cap, courts will look to the following factors to determine the appropriate amount of temporary maintenance over the cap:

• the length of the marriage;
• the substantial differences in the incomes of the parties;
• the standard of living of the parties established during the marriage;
• the age and health of the parties;
• the present and future earning capacity of the parties;
• the need of one party to incur education or training expenses;
• the wasteful dissipation of marital property;
• the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
• 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. Such acts include but are not limited to acts of domestic violence as provided in SSL 459-a;
• the availability and cost of medical insurance for the parties;
• the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
• the inability of one party to obtain meaningful employment due to age or absence from the workforce;
• the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
• the tax consequences to each party;
• marital property subject to distribution pursuant to DRL 236-B(5);
• the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
• the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
• any other factor which the court shall expressly find to be just and proper.

iii.  Deviating from the Presumptive Amount 

The court can then "deviate" from the presumptive amount if the court finds that the amount would be unjust or inappropriate based upon a consideration of the following factors:

• the standard of living of the parties established during the marriage;
• the age and health of the parties;
• the earning capacity of the parties;
• the need of one party to incur education or training expenses;
• the wasteful dissipation of marital property;
• the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
• 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. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
• the availability and cost of medical insurance for the parties;
• the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
• the inability of one party to obtain meaningful employment due to age or absence from the workforce;
• the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
• the tax consequences to each party;
• marital property subject to distribution pursuant to DRL 236-B(5);
• the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
• the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
• any other factor which the court shall expressly find to be just and proper.

Thus, if maintenance is an issue in your case, it will be important to have an attorney who will help prepare your Statement of Net Worth, scrutinize the other parties' Statement of Net Worth, and argue for a deviation from the presumptive amount.

II.  Post-Divorce Maintenance

 A.  How Long is Post-Divorce Maintenance?  Durational v. Permanent Maintenance

How long a party will receive maintenance depends on the facts of each individual case; however, as a general rule of thumb, it is safe to assume that a party will be entitled to receive maintenance (temporary and post-divorce combined) for 1/3 to 1/2  of the length of the marriage.  As discussed above, this seems to be a length of time that many courts find reasonable to enable a former spouse to become self-supporting in the manner and lifestyle in which he or she has been accustomed during the marriage and in which the or she should continue to enjoy. See generally, Carrozzo v. Carrozzo, 609 N.Y.S.2d 123, 123 (4th Dept. 1994).  Whenever there is a ticking clock associated with the maintenance award, it is described as "durational."

However, self-sufficiency is not always feasible, particularly when an older recipient has been out of the labor market for many years. See generally, Seamans v. Seamans, 199 A.D.2d 790, 791 (3d Dept. 1993).  In this situation, the Appellate Division, First Department, has articulately stated that:

"A time limitation on maintenance…should be imposed solely to enable the dependent spouse to obtain training to become financially independent, or to allow the dependent spouse to restore his or her earning power to a previous level.  When the dependent spouse is unlikely to become completely self-supporting, durational limits on maintenance are inappropriate.  Lifetime maintenance may be awarded when the dependent spouse is incapable of future self-support, has no skills or training, or is mentally or physically ill.  The appellate courts of this state have often granted permanent maintenance to dependent spouses who…had psychiatric problems, had been out of the work force for a number of years, lacked advanced degrees, and were middle- aged."

Michelle S. v. Charles S., 683 N.Y.S.2d 89 (1st Dept. 1999) (citing, Sivigny v. Sivigny, 624 N.Y.S.2d 120 (1st Dept. 1995); Jones v. Jones,  519 N.Y.S.2d 22 (2d Dept. 1987); Carrozzo, 609 N.Y.S.2d 123) (some internal citations omitted) (emphasis added).

Therefore, non-durational maintenance or "permanent maintenance" may be appropriate in situations where the payee is simply unable to be self-supporting in the manner and lifestyle in which the payee has been accustomed during the marriage and in which the payee should continue to enjoy. See, Carrozzo, 609 N.Y.S.2d 123 (4th Dept. 1994) (five-year durational maintenance was error and replaced with non-durational maintenance where payee was approximately 52 years old at the time of trial, had not worked outside the home since she was 18 years old, never graduated from high school, and suffered from physical and psychological impairments that made her unemployable); Fischer v. Fischer, 606 N.Y.S.2d 494 (4th Dept. 1993) (three-year durational maintenance was error and replaced with non-durational maintenance in light of the parties’ respective incomes; the nearly 35-year long marriage; payee being 56 years old with a lack of education and work experience resulting from the parties' decision that payee would assume the role of full-time homemaker and caretaker of the children; and the unlikelihood that payee could become self-supporting); Fleitz v. Fleitz, 223 A.D.2d 946, 948 (3d Dept. 1996) (five-year durational maintenance was error and replaced with non-durational maintenance where payee was 42 years old; had a lack of earning capacity; withdrew from the labor market to be wife, mother, and homemaker; forewent educational opportunities occasioned by her withdrawal from school to accompany payor to California where he sat for dentistry boards; and payor’s tax free income); White v. White,  204 A.D.2d 825, 828 (3d Dept. 1994) (ten-year durational maintenance was error and replaced with non-durational maintenance where the trial court found payee to be “unable to be self-supporting in the manner and lifestyle to which she has been accustomed during the marriage and which she should continue to enjoy”).

However, there are events, other than a set date in the future, which will terminate maintenance.  Such events include the death of either party or the payee's remarriage, whether valid or invalid. DRL 236-B(6)(c).  DRL 248 further addresses what is to happen to an order of maintenance upon a payee's remarriage.  DRL 248 states that maintenance shall terminate upon the application of the "husband," and of proof of the "wife's" remarriage.  It further states that, where the husband proves that the wife is habitually living with another man and holding herself out as that man's wife, although not married to him, the Court may terminate maintenance.  

Notably, while DRL 248 specifically refers to "husband" and "wife" and the Legislature has not chosen to amend DRL 248 to make it gender neutral, at least one Court has interpreted the statute as such to save its constitutionality from an attack based upon gender discrimination. Wood v. Wood, 428 N.Y.S.2d 136 (Family Court, Queens County 1980).

Furthermore, although the burden of proof associated with these events tends be quite heavy, a party may be able to modify, either upwards or downwards, a maintenance award based upon:

• the payee's inability to be self-supporting,
• a substantial change in circumstances,
• termination of child support, or
• financial hardship upon payor.

DRL 236-B(9)(b)(1); see also, McGuire v. McGuire, 606 N.Y.S.2d 440 (3d Dept. 1994). 

Finally, if the parties agree to an award of maintenance, they can also agree to end maintenance on any number of events, including retirement or the payee's "cohabitation" with another individual.  However, BEWARE: 

• FIRST: To the disdain of many payors, courts have been notorious in interpreting the phrase "cohabitation."  A drafting attorney must be more than diligent in defining "cohabitation" to ensure compliance with the relevant, and relatively recent, appellate decisions.   
• SECOND: if the agreement includes a list of events on which maintenance will terminate, but fails to include, let's say, the payee's remarriage, then the event which was not included will not terminate maintenance. Deangelis v. Deangelis, 285 A.D.2d 593 (2d Dept. 2001).  In such case, the payor will likely be considered to have implicitly agreed to maintenance post-remarriage!  The relevant latin phrase here is: Expressio Unius Est Exclusio Alterius ("the expression of one thing is the exclusion of the other")

 B.  How much is Post-Divorce Maintenance?

As discussed above, post-divorce maintenance is not the same as temporary maintenance.  While there is a formula for calculating temporary maintenance, there is no formula for calculating post-divorce maintenance.

Thus far, it seems, Courts have been reluctant to use the presumptive amount of temporary maintenance as the amount for post-divorce maintenance.  Courts seem to be finding that the actual, reasonable needs of the payee are less than the presumptive amount of temporary maintenance.  That is not to say, however, that the presumptive amount of temporary maintenance is never used to determine post-divorce maintenance.   

Ultimately though, the amount of post-divorce maintenance will greatly depend on what is reasonable, based upon the marital standard of living and the ability of the payor to pay.  These are questions of fact which will require proof and persuasive argument.  Thus why it is important to have a diligent attorney that you can trust to focus and prepare your case.

Don't forget, when determining "how much" maintenance is, maintenance is deductible to the payor and includible as income to the payee on their federal and state income tax returns.  On one hand, this is good for the payor, as he or she now receives a substantial deduction on their taxes; on the other hand, it could be devastating to the payee, who may no longer qualify for certain things, such as an Earned Income Credit.  A keen awareness of these tax implications is critical.  

If you have any questions or concerns, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.