Post-Divorce Maintenance

Maintenance can be requested during marriage, while seeking a divorce, and under certain circumstances, after divorce.

Maintenance is intended to aid the financially-dependent spouse in restoring a capacity to be self supporting. Maintenance often terminates after a certain period of time required to obtain the necessary education or other training. Maintenance always terminates by the death of either party, the remarriage of the recipient spouse, and cohabitation with a romantic partner under certain circumstances.

Maintenance is derived from a formula:


here the payor's income is $178,000 or less, the court shall determine the guideline amount of temporary maintenance as follows:

(1) If child support will be paid for children of the marriage and where the payor is also the non-custodial parent:

(a) 20% payor's income - 25% payee's income

(b) (payor's income + the payee's income) X 40% - payee's income

The lower of the two amounts is awarded, often -0-

(2) If child support will not be paid for children of the marriage, or where child support will be paid for children of the marriage but the payor is the custodial parent:

(a) 30% payor's income - 20% payee's income

(b) (payor's income + the payee's income) X 40% - payee's income

The lower of the two amounts is awarded, often -0-

If the Maintenance Payor’s income exceeds $178,000, the Court may award an additional amount of maintenance. In making such decision, the Court shall consider the 15 factors for post-divorce maintenance.

Unjust or Inappropriate Awards:

If a party believes that the Guideline Maintenance Award on income up to $178,000 is unjust or inappropriate, the party can ask the Court to order the Maintenance Payor to pay an adjusted amount. In making such decision, the Court shall consider the 15 factors for post-divorce maintenance. 

The following 15 factors are considered:

  • the age and health of the parties;

  • the present or future earning capacity of the parties, including a history of limited participation in the workforce;

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

  • the termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;

  • the wasteful dissipation of marital property, including transfers or encumbrances 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 children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;

  • the tax consequences to each party;

  • the standard of living of the parties established during the marriage;

  • The equitable distribution of marital property and the income or imputed income on the assets so distributed

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

  • income from income-producing property distributed or to be distributed pursuant to subdivision five of this part.

  • any other factor which the court shall expressly find to be just and proper.

The duration of post-divorce maintenance may be determined as follows:

The court may determine the duration of post-divorce maintenance in accordance with the following advisory schedule:

Length of the marriage

Percent of the length of the marriage for which maintenance will be payable

0 up to and including 15 years

15%--30%

More than 15 up to and including 20 years

30%--40%

More than 20 years

35%--50%

In determining the duration of post-divorce maintenance, whether or not the court utilizes the advisory schedule, it shall consider the 15 factors stated, in a written decision or on the record, the factors it considered.  

The court will also consider anticipated retirement assets, benefits, and retirement eligibility age of both parties if ascertainable at the time of decision.  If not ascertainable at the time of decision, the actual full or partial retirement of the payor with substantial diminution of income shall be a basis for a modification of the award.

 The parties may at any time voluntarily enter into validly executed agreements or stipulations which deviate from the post-divorce maintenance guideline obligation.