Garden City Law Firm

Maintenance is defined under the Domestic Relations Law as the payment of money from a current or former spouse to the other pursuant to a written agreement or a valid court order to be paid at fixed intervals for a definite or indefinite period of time. In order to qualify as maintenance, all three elements are required.

Am I entitled to maintenance from my spouse?

Spousal maintenance is not guaranteed, however recent changes in the law make it more likely that the non-monied spouse will receive maintenance. Domestic Relations Law section 236-B(6) sets forth the factors that Courts will use in determining a maintenance award.

D.R.L. Section 236-B(6) Maintenance Factors
(1) The income and property of the respective parties including marital property distributed pursuant to equitable distribution
(2) The duration of the marriage and the age and health of the parties.
(3) The present and future earning capacities of both parties
(4) The ability of the party seeking maintenance to become self supporting
(5) Whether there is a reduced or lost earning capacity of the party seeking maintenance which resulted from forgoing or delaying training or employment during the marriage
(6) The presence of children of the marriage in the respective homes of the parties
(7) Tax consequences to the parties
(8) Contributions and services of the party seeking maintenance
(9) Wasteful dissipation of marital assets by either party
(10) Transfers made in contemplation of a matrimonial action at below market value
(11) Any other factor the court determines as relevant

Will I receive lifetime (non-durational) maintenance from my spouse?

It is possible for a spouse to receive a lifetime (non-durational) maintenance award. However, it is an increasingly common trend for the courts to award spouses durational maintenance for a fixed period of time so that the non-monied spouse may rehabilitate themselves back into the workforce. Lifetime maintenance is generally only awarded in circumstances where the non-monied spouse has no ability to become self-supporting in the future.

Can I seek an award of maintenance even though there is no pending divorce action?

Yes, a spouse has the right to seek an order of support in Family Court under the Family Court Act section 412.