Figuring Out Spousal Support in a Divorce —How It Works and How to Secure the Support You Need
Once you’ve ironed out equitable distribution of your marital assets and debts in your divorce, you still have to figure out the matter of income and ongoing support—both for you and any children you may have. Unfortunately, determining these amounts can get quite complicated here in New York, and for that reason, it frequently causes contention between divorcing spouses. While courts typically determine amounts of spousal and child support in relation to each other, for our purposes, we will discuss each in turn, to clarify the process. Let’s start by getting a clearer understanding of how spousal support works.
Support versus Maintenance
The State of New York uses two terms to describe to what we often call “alimony,” and you should understand the difference between them. Spousal support (sometimes also called “temporary maintenance”) refers to money paid from one spouse to the other while they are still married. For example, if they are separated, but not yet divorced. Spousal maintenance refers to money paid from one spouse to the other after the divorce, according to the terms of the divorce agreement.
Thus, if you separate from your ex but need financial assistance while you negotiate the divorce, you may petition for spousal support until the divorce is final—after which time you’ll receive spousal maintenance for the length of time specified in your divorce agreement.
Calculating Spousal Maintenance: A Complicated Process
The courts take many factors into account when calculating spousal support and maintenance—a process made even more complex by 2016 passage of a new set of maintenance guidelines and child support laws. Here are some of the most important takeaways:
- The court considers at least 15 factors in calculating spousal maintenance including: age/health of the spouses; income and earning capacity; tax consequences; care of children, stepchildren or disabled individuals; and the previous standard of living during the marriage.
- Calculation of spousal maintenance is based on an income cap of $178,000. Thus, if your ex makes $500,000 a year, your maintenance guideline is still calculated as though his income were $178,000. However, if that amount seems unfair or insufficient to you or to the judge, the judge may adjust it.
- Spousal maintenance is calculated before child support. If your maintenance payouts are higher, your child support amount may be adjusted downward to compensate.
- The length of time for spousal maintenance is based on a percentage of the amount of time you were married. For a marriage lasting less than 15 years, for example, you may receive maintenance payments for 15-30 percent of the length of the marriage; for longer marriages, the time frame gets longer.
As if matters weren’t complicated enough, one of two formulas may be used to calculate the payments, based in part on whether child support is also paid. The state provides forms and calculators to help determine spousal support/maintenance and child support, but they can yield confusing results.
Navigating Your Way through the Confusion
Here’s the good news: As complicated as this process sounds, the calculated amounts of support are still considered guidelines; they are not set-in-stone amounts. If the numbers don’t seem right or fair, you have at least two options:
- You can ask the judge to review the support amount. Your attorney and you should provide clear reasons why the recommended amount of maintenance is incorrect, because the courts have plenty of leeway to override the guidelines when necessary.
- You can negotiate a support agreement with your spouse directly, through attorney negotiations or by mediation. If you’re on reasonably good terms with your ex, this solution may work best because courts will honor your agreement over their own calculations.
Figuring out the amount of support for which you’re eligible can be daunting at best—and coming to agreement with your ex may be even more difficult. For best results, consult with an experienced family law attorney who can help you receive the support you need and deserve. For more information, contact our offices today.
Common New York Alimony Questions
If you’re divorcing, you likely have questions about what you are entitled to receive. Once the assets are split up, can you expect to receive anything else from your ex-spouse? New York and other states offer alimony, also known as maintenance or spousal support. Maintenance is a type of financial support that may be paid to either party—the ex-wife or the ex-husband.
Not every person is eligible to receive maintenance, so it’s important to know who can receive it and the factors involved. Here are the answers from our Saratoga alimony lawyers to some questions you may have about the process.
Can I receive New York alimony if I work or receive public assistance?
Even if you work, you may still be eligible to receive alimony if you’re not earning enough money to make ends meet. If you receive public assistance in the form of cash, you can receive alimony, but not directly from your ex-spouse. The Human Resources Administration would be in charge of collecting the alimony payments and distributing them to you.
Can I receive spousal maintenance before the divorce is finalized?
Yes. This is called temporary maintenance. The judge will decide on an amount using a formula that incorporates the income of you and your spouse. The formula is either 30 percent of the other spouse’s income minus 20 percent of your income, or 40 percent of the other party’s income and your income combined minus 20% of your income.
What factors determine how much maintenance a person can receive?
Each situation is different. In order to calculate maintenance, the court will consider 20 factors. The biggest factors include the income of both parties, future earning capacity, absence from the workforce, length of the marriage, age and health of both parties, where the children live, distribution of marital property, tax consequences and additional expenses involved.
How long does maintenance last?
A person is obligated to pay maintenance until either party dies or the recipient remarries. In some cases, there may be an end date specified on an agreement or the court may set an end date.
Can the amount of maintenance ever be changed?
Yes, but it’s not easy and can only be done in extreme situations. It does not happen automatically, so you must petition the court.
If you or your ex-spouse faces a significant life change, such as unemployment or disability, the amount of maintenance could increase or decrease. For example, if your ex-spouse loses his job, he could petition the court to pay a lower monthly amount until he gets a new job. If you lose your job, you could also petition the court to increase your alimony payments temporarily. Either party must be ready to show the judge proof of financial hardship.
Contact a Family Law Attorney in New York Today
Alimony laws differ from state to state, so hopefully, this Q&A session gave you a better understanding of the process and what you can expect. The experienced family law attorneys from The Colwell Law Group can answer your questions about alimony and help you understand your legal rights. Contact us today by calling (518) 512-0257 or texting us at (518) 730-7028.
When Does Spousal Support End?
In a divorce, one of the concerns you may have is whether or not you will be entitled to receive spousal support. Alimony is a hot topic in a divorce, and while $9 billion is paid in alimony in the United States every year, it does not apply to every marriage. For example, two spouses who work and earn the same amount of money and have no kids will likely not require alimony. Maintenance amounts and lengths are decided by the court.
Alimony is based on various factors, including the length of the marriage, age and health of both spouses, income, earning capacity, tax consequences, where the children live, length of time out of the workforce, and the need for additional education and training. Alimony serves to compensate a spouse for time spent away from the workforce to care for children, as well as help the spouse gain the required education and training to pursue gainful employment.
You can use a calculator to see how much alimony you can receive. New York determines this amount by using a formula. It is set at 30 percent of the income of the higher-earning spouse’s income, minus 20 percent of the lower-earning spouse’s income. There is a cap to this amount, though. The alimony recipient cannot receive more than 40 percent of the couple’s combined income.
So how long can you expect to receive alimony? For a few years? The rest of your life? Until you remarry? It is important to understand these specifics in New York if you are paying or seeking to receive alimony.
How Long Does Alimony Last?
There is no set time frame for how long alimony can be awarded. It depends on various elements of the marriage. It may be awarded for a couple years or it could be awarded for the rest of the recipient’s life. New laws in New York have given guidelines to judges, who may award alimony for 7-10 years for marriages lasting 20 or more years.
There are different types of alimony in New York, including temporary, rehabilitative and permanent. Temporary alimony is awarded when a divorce puts a financial burden on a spouse and extra money is needed right away. One spouse will be ordered to pay alimony until the recipient can get back on his or her feet.
Rehabilitative alimony is commonly awarded to stay-at-home parents who have been out of the workforce for a while and need financial resources to acquire skills and education to find a job. Permanent alimony is awarded in cases where a spouse stayed at home for most of the marriage and is now at an age where gaining new skills and education is not practical. The spouse is eligible to receive alimony until he or she remarries, or either spouse dies.
Reach Out to a Schenectady County Alimony Lawyer Today
In a divorce, depending on your situation, you may be entitled to receive alimony. If you earn more money than your spouse, though, you may be asked to pay it to the other party. In either case, it’s important that you understand your legal rights.
If you have concerns about spousal support, contact a New York lawyer at The Colwell Law Group. We can assess your case and determine if alimony is an option in your case. Call our office today at (518) 512-0544 to schedule a confidential consultation.
Interstate Child Support and Spousal Actions
Albany NY Interstate Child Support Attorneys
The law is constantly finding new ways to deal with the ever-evolving challenges of family law. One growing problem is the fact that so many people relocate to other states. Relocation can complicate family law matters such as child support and spousal maintenance. If one parent has moved, where are petitions for modification or enforcement rightly to be heard?
We understand just how important child support and spousal support can be, and how frustrating it is to continually be denied these crucial finances. Additionally, when a client requires a modification to be made, whether they lost a job or underwent another life changing event, it is necessary to work with an interstate family law attorney to ensure that these modifications can be made in a timely manner.
Laws Governing Interstate Child Support
The most important legislation that governs interstate child support issues is the Uniform Interstate Family Support Act (UIFSA) which is covered in more detail below. It isn’t, however, the only legislation governing this issue. Others include:
- Personal Responsibility and Work Opportunity Act
- Full Faith and Credit for Child Support Orders Act
- Uniform Enforcement of Foreign Judgments Act
Uniform Interstate Family Support Act (UIFSA)
The UIFSA governs procedures for:
- Withholding income for spousal and child support;
- Allowing income to be withheld without the need for a judicial hearing;
- Establishing paternity (expedited);
- Establishing, modifying and enforcing child support payments;
- Attaching child support to tax refunds;
- Placing liens on real estate or personal property; and
- Reporting arrearages to credit bureaus.
Personal Responsibility and Work Opportunity Act
In addition, the Personal Responsibility and Work Opportunity Act establishes criteria for fraudulent conveyance, fraudulent transfer, and procedures for voiding fraudulent transfers. In cases where an unwilling parent transfers property in order to avoid leaving it vulnerable to a lien or other withholding, the government can void the transaction. Also included here is the misrepresenting of income or the hiding of income to avoid full child support payments.
Full Faith and Credit for Child Support Orders Act
The Full Faith and Credit for Child Support Orders Act governs the enforcement of orders across state lines. Prior, a non-custodial parent was able to relocate to a state that would not enforce the order to avoid paying any child support whatsoever. This law prevented them from doing that. The law requires that one state enforce the child support order from another state.
Uniform Enforcement of Foreign Judgments Act
The Uniform Enforcement of Foreign Judgments Act expanded the court’s power to enforce arrearages for child support that were not covered by the Full Faith and Credit for Child Support Orders Act which only covered garnishments, levies, and liens for current and ongoing support payments. It allowed the courts to domesticate foreign judgments in the non-custodial parent’s home state allowing the judgment to become effective in that state.
Enforcement, Modification, and Other Issues
The Uniform Interstate Family Support Act (UIFSA) provides a variety of criteria that control where child support and spousal maintenance issues are decided. The application of the UIFSA to an individual situation can be very complex when it comes to child support modifications, enforcement and other issues. You should choose to work with an attorney who understands the various laws that govern in what state your matter is heard. Ensuring that the court properly determines those issues using the appropriate state law depends on making sure that the issue is heard in the correct state’s court.
What Does the Uniform Interstate Family Support Act Do Regarding Spousal and Child Support Orders and Modifications?
The UIFSA serves to expedite “interstate and intrastate proceedings involving child support or spousal support.” Or, its purpose is to ensure that all states comply with its jurisdiction involving the swift and full payment of child or spousal support. Specifically, the Act governs the following:
- Establishment of a child or spousal support order;
- Enforcement of a support order;
- Registration of child or spousal support;
- Modification of a child or spousal support order;
- Registration of a child or spousal support order;
- Establishment of who the parent is; and
- Assertion of jurisdiction over nonresidents, or those who live outside of New York.
Which State Has Jurisdiction?
Does the Petitioner Have Leverage?
It’s the petitioner’s choice unless both parents file support modification orders in their respective states. In that case, the federal courts would take jurisdiction of the case only for the purpose of deciding which state has jurisdiction. The court will make a determination based on the state in which the child has lived as long as they have lived there for at least six months. If the child has not lived in any state for at least six months, then the court will decide based on which state the child has the greatest connection to.
The petitioner has some leverage when they are the one doing the petitioning and the other parent has not had the opportunity to petition the court for a modification. In other words, the petitioner can force the other parent to go to court in their own state or they can force the other parent to come to court in the other parent’s home state. In many cases, the laws of one state may benefit you while they hinder you in another state. Your attorney can help you make this decision.
In some cases, the petitioner will file in their home state forcing the other parent to go to court in their home state. When this happens, the two courts will communicate with one another to resolve the dispute. The responding court in the other parent’s home state has jurisdiction and that state’s laws apply.
Which State’s Laws Benefit Your Situation the Most?
In cases where your own state’s age of emancipation is lower than 21 or support payments are calculated differently, you’ll want to know which state’s laws benefit your situation the most. You can be sure that the other parent will do the same. In that case, whoever petitions the court first will win. For that reason, you have to move quickly. Once jurisdiction is established, the other state’s courts cannot intervene unless the original petitioner moves out of state.
Enforcing Child Support Across State Borders
In 1996, the Uniform Interstate Family Support Act’s child support enforcement was greatly bolstered. Unfortunately, child support can be incredibly difficult for many parents to receive on time and in full. Only 61 percent of fathers (and mothers) make their required child support payments, according to a study published in Journal of Marriage and Family and reported by Time Magazine. While mothers may be the party that owes child support in many cases, the majority of the time child support is owed by the father.
A study published in the Journal of Sociology and Social Welfare found that fathers who fail to pay child support claimed the following reasons as to why they do not make their payments: they do not have enough money, they are not allowed visitation rights or are not allowed to visit as much as they wish, they have no control over how the money is spent, they claim that the child is not theirs and that they should not be held responsible because they never wanted the child in the first place.
Whatever the reasons may be, the law holds all individuals accountable for coming up with the child support payments that they owe. If it comes down to it, wage garnishing, a revocation of their driver’s license, and even jail time may be necessary until payments are made. Working with an attorney that has intimate knowledge of the UIFSA’s Child Support Enforcement regulations is paramount to receiving what you and your child are owed.
Creating Solutions to Resolve Interstate Child Support and Spousal Support Issues
At Colwell Law Group, LLC, we have more than 40 years of combined experience working through the most challenging legal issues for our clients. We can help navigate the complexities of interstate child support and spousal maintenance laws to ensure that your matters are being heard in the correct court and that the right set of laws are being applied. The regulations of the Uniform Interstate Family Support Act are vast and must be strictly adhered to. For instance, a spousal support modification can only be made in the court where the original order was made, under the UIFSA. Working with a compassionate, experienced lawyer will ensure that you protect your interests and uphold the law in all circumstances. We are committed to effectively resolving these types of issues efficiently and effectively.
To review what past clients have had to say about the high quality of representation and service we provide to our clients, review our testimonials page.
Interstate Child Support and Spousal Maintenance Lawyers Serving the Capital District and All of Upstate New York
When child support and spousal maintenance issues cross state lines, turn to a law firm with experience creating positive results for their clients in such matters. For a consultation, call 518-462-4242 or contact us online.
Spousal Maintenance in Albany
When Albany spouses file for divorce, the issue of alimony, or spousal maintenance, may become a bone of contention during the proceedings. The question of spousal maintenance generally comes up in situations where one spouse was earning a much higher wage than the other spouse, and it is particularly common where one spouse was working during the marriage and the other spouse was caring for the home and family.
At the Colwell Law Group, LLC, we have represented spouses on both sides of the spousal maintenance debate. In these kinds of cases, one thing is sure. Generally, the paying spouse will want to do whatever he or she can to pay as little as possible in alimony, while the receiving spouse will do whatever he or she can to receive as much as possible in alimony payments. Meanwhile, the courts will try to evaluate the situation to determine what is appropriate given the unique facts and circumstances applying to the spouses.
New York Spousal Maintenance Laws
As of January 2016, the laws relating to spousal maintenance in New York have changed. These new laws could affect how much and how long the “moneyed” spouse will be required to pay his or her ex-spouse. As such, it is vital that individuals considering divorce check with a family law lawyer to ensure they have a clear picture of how the new spousal maintenance formulas could affect their divorce filings, and what that could mean for their financial situations in the months and years to come.
Call Us Today
At the Colwell Law Group, LLC, we offer free, first-time consultations to new clients considering divorce. During our initial conversations with new clients, we will gather the basic facts pertaining to their financial situations and marriage circumstances and advise them of the next steps they should take.