- April 26, 2021
- Levoritz Law Group
One of the most difficult decisions a married couple may face is the decision to get a divorce. A divorce not only results in substantial changes to the couple’s lives, but, more importantly, it can significantly impact the lives of their children. However, if you decide that a divorce is the only solution to a failing marriage and relationship, knowing your rights, as well as your potential obligations, is crucial.
The process to obtain a divorce can be complex and is governed by New York Family Laws. There are numerous difficult decisions to be made and issues to resolve before a couple can divorce, including which parent the couple’s child or children will live with and how custody of the children will be handled. Separating parents often resolve child custody issues in an amicable way; however, if parents cannot agree on whether one parent will have sole custody of their children, or if both parents will have equal custody, or on how important decisions regarding the children’s care, including about their health, education, religious upbringing, and activities, will be made, court intervention may be necessary. A judge may ultimately determine the details of the child custody arrangement in accordance with the children’s best interest.
In addition, a divorcing couple must also address whether child support and/or alimony will be paid by one spouse to the other. Frequently, the issue of financial support is the source of bitter dispute between divorcing spouses. In many cases, a spouse may be willing to pay child support to the other spouse, but be unwilling to pay any alimony.
Typically, alimony is paid in the form of Spousal Maintenance and/or Spousal Support. Alimony is designed to provide financial support to one spouse so that he or she can continue to have a similar lifestyle to that enjoyed during the marriage. It is normally the spouse who generated the income that supported the couple’s lifestyle during the marriage that will be required to pay alimony to the other spouse. The amount of alimony that may be granted to a spouse is dependent on several factors, and the obligation to make alimony payments may begin during the course of the divorce proceedings, before the divorce is final.
What is the Difference Between Spousal Support and Spousal Maintenance?
A spouse can file a request with the Family Court to award him or her financial support before the parties are divorced. Spousal Support is alimony granted to a spouse while the parties are still married; however, there are instances in which a spouse demands that Spousal Support payments continue after the divorce is finalized. Spousal Maintenance, on the other hand, is the financial compensation granted to a spouse after a divorce is finalized so that the spouse may maintain the lifestyle he or she enjoyed during the marriage. Alimony can also be used to provide for the needs of the spouse’s children, above and beyond any required child support payments.
Alimony: How Much Is a Spouse Entitled To?
Every spouse may file a request with the court for alimony. The judge will determine the amount of alimony to be awarded to a spouse, if any, based on the following factors:
Property and Income
The court will consider all property owned by the respective spouses, which includes earned income, all other property and assets, and monetary returns which flow from income-producing property. The amount of alimony awarded to a spouse may be reduced if that spouse receives a larger share of marital assets in the divorce or he or she has other sources of income to support himself/herself.
Age and Health Condition
The court will consider the ages and health of the respective spouses. If the spouse requesting alimony is older and/or in poor health, the court may award a higher amount of alimony.
Length and Duration of the Marriage
The court will consider the duration of the parties’ marriage. The longer the marriage, the higher the possible alimony award.
Role of the Spouse in Raising the Children
Another factor a court will consider is the earning capacity of each spouse. If one spouse earned less than the other during the marriage, or the spouse was primarily a homemaker and stayed home with the parties’ children, the court may award that spouse a higher alimony amount.
The court will also consider the presence of the parties’ children in the respective homes of the spouses. A child’s presence in the home could negatively impact the spouse’s ability to work outside the home and could affect the spouse’s current income as well as his or her future ability to be self-supporting, which could warrant a higher alimony award.
Further, the court will consider the contributions and services of the spouse seeking maintenance, as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other spouse.
Typically, the court will determine alimony and child support according to the monthly income of both parents.
Marital Standard of Living
The court will also consider the standard of living established during the spouses’ marriage when determining an alimony award. The court will review the realistic and actual marital standard of living as a factor in determining an award of alimony where the other spouse can afford to maintain that standard.
When Does the Obligation to Pay Alimony End?
The amount and duration of alimony is within the court’s discretion and can be awarded for a specific number of years or an indefinite period of time, in order to meet the reasonable needs of a spouse. The court applies the same factors it uses to determine the amount of alimony awarded when determining how long the support obligation should be in place.
How Much Should be Allotted for Child Support?
In addition to needing parental guidance and supervision, children need financial support for their care and maintenance, including for childcare, education, health insurance, and other medical needs. The amount of a parent’s child support obligation depends on the income of each parent, as well as the number of children that require support.
Typically, child support is calculated according to a specific statutory formula, by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling amount. However, even if a divorcing spouse is unemployed, New York law considers disability benefits, unemployment benefits, Social Security benefits, veteran’s benefits, pension and retirement benefits, fellowships, and stipends, as well as annuity benefits, as “income” in order to compute child support obligations.
When Does Child Support End?
Generally, a parent’s obligation to pay child support ends when a child turns 21. A parent is not liable for the support or college expenses of a child who has reached the age of 21 unless there is an express agreement to pay such support. Moreover, if a child becomes financially independent before the age of 21, gets married, or enters military service, the parent paying child support can petition the court to end the support obligation.
Any agreements or court orders concerning parental visitation or custody ends when the child turns 18.