Getting a divorce does not alleviate the responsibility that spouses have for each other. In many families, there is one person who is the primary money-earner and the other spouse may have a job or career that earns less or may not work at all. After a divorce, one of the major concerns is that non-monied spouse will not be able to continue to afford a place to live and provide for necessary expenses. The spouse whose primary responsibility in the family is to take care of the kids, the house, and the dog should not suddenly be on the streets because their marriage has ended.
The term most associated with one spouse providing financial support to the other is alimony. Other terms used are “maintenance” and “support.” The difference between the two are that support is paid during a separation period while the couple is still legally married while maintenance is paid after the divorce has been finalized.
In an effort to make the amount paid fair and consistent without variables such as emotion or “getting the right or wrong judge”, New York State calculates the amount of maintenance based on a preset formula taking into account many objective variables.
The items that factor into maintenance include but are not limited to:
- The length of the marriage
- The age and relative health of each of the spouses
- Present and future earning potential
- This can also include the time and cost of one spouse needing to get an education or training in order to re-enter the workforce
- How long it will take, or if is possible for the spouse seeking maintenance to become fully self-supporting
- Whether the spouse seeking maintenance has additional responsibilities such as taking care of children or aging parents who are living with them and whether this responsibility inhibits their job or career options and earning potential
- The equitable distribution of marital property
- The contributions made by the spouse seeking support in their role of taking on more of a home-making role in order to boost the earning potential of the primary earner.
There are additional variables that are taken into account regarding the ability of the spouse to enter the workforce due to factors such as the spouse being a victim of domestic violence.
With the new tax law, the Tax Cuts and Jobs Act (TCJA), there is a major change for divorce agreements that are finalized after December 31, 2018. The law will also effect existing agreements that are modified after that date if the modification specifically says that the new agreement will receive the TCJA treatment of alimony payments.
Under the TCJA, maintenance payments are no longer tax-deductible. For the person receiving the money, maintenance no longer has to be included as taxable income. Essentially, the tax burden has been moved from the recipient to the payor. Depending on the payments, this can be a significant expense or savings to each of the spouses.
This change will not effectagreements that are already in place. It is also important to note that this information and change in the law is in regard to spousal maintenance and not child support, which is governed by its own set of rules and laws. If you have any questions about spousal support, maintenance, or child support contact the Law Office of Anthony LoPresti at 516-252-0223.