For most people going through a divorce in Nassau County, spousal maintenance, what many people still call alimony, is one of the first financial questions that comes up. Will I have to pay it? Will I receive it? How much? For how long?
One of the biggest surprises for divorcing spouses is that maintenance is not determined by a judge simply picking a number that feels fair. New York uses a statutory formula that gives both sides a starting point before the court considers the specific facts of the case.
New York moved away from purely discretionary maintenance awards in 2010 and again in 2016, replacing them with that formula. It does not eliminate discretion entirely, but it gives both sides a concrete starting point and a much clearer sense of where they stand.
Temporary Maintenance vs. Post-Divorce Maintenance
There are two separate maintenance questions in any New York divorce. The first is what happens while the case is pending. The second is what happens after it ends.
Temporary maintenance, sometimes called pendente lite support, is paid from the time it is ordered until the judgment of divorce is entered. Its purpose is to keep the lower-earning spouse financially stable while the case works its way through the courts, which in Nassau County can take a year or more.
Post-divorce maintenance addresses what one former spouse may owe the other after the divorce is final. The duration depends on the length of the marriage and the circumstances of the case.
Both are calculated using the same statutory formula under New York Domestic Relations Law § 236(B), though the results can differ because temporary maintenance is calculated before child support is finalized, while post-divorce maintenance is calculated after.
How the Amount Is Calculated
The formula applies to the income of both spouses, up to a cap. As of March 1, 2024, the income cap is $228,000 of the paying spouse's income. This cap is adjusted every two years. For income above the cap, the court has discretion to award additional maintenance based on statutory factors, but is not required to do so.
The math is less important than understanding what it produces: a baseline both sides can see before any argument starts. That said, here is how it works.
There are two formulas, and which one applies depends on whether the paying spouse is also paying child support.
When the paying spouse is also paying child support:
- Subtract 25% of the receiving spouse's income from 20% of the paying spouse's income.
- Separately, multiply the combined income of both spouses by 40% and subtract the receiving spouse's income from that result.
- The lower of the two results is the guideline maintenance amount.
When the paying spouse is not paying child support:
- Subtract 20% of the receiving spouse's income from 30% of the paying spouse's income.
- Separately, multiply the combined income of both spouses by 40% and subtract the receiving spouse's income from that result.
- Again, the lower of the two results is the guideline amount.
If either formula produces a result of zero or less, there is no maintenance award under the guidelines.
The formula also includes a self-support reserve, a safeguard designed to prevent the paying spouse from being left below a minimum income threshold set by New York courts. If applying the guideline amount would push the paying spouse below that threshold, the award is reduced accordingly.
How Long Maintenance Lasts: The Advisory Duration Schedule
For post-divorce maintenance, New York courts apply an advisory duration schedule tied to the length of the marriage:
- Marriages of up to 15 years: maintenance duration is 15% to 30% of the length of the marriage.
- Marriages of more than 15 years up to 20 years: maintenance duration is 30% to 40% of the length of the marriage.
- Marriages of more than 20 years: maintenance duration is 35% to 50% of the length of the marriage.
This schedule is advisory, not mandatory, and that word carries real weight. The court must state on the record whether it followed the schedule or departed from it, but it has broad authority to do either. In long marriages, cases involving significant health issues, or situations where one spouse's earning capacity is genuinely limited, courts depart from the schedule regularly. In exceptional cases, a court can award non-durational maintenance with no fixed end date.
A practical example: a marriage of 10 years would produce a guideline duration of between 18 months and 3 years. A 25-year marriage would produce a range of roughly 9 to 12 years. Neither range is a ceiling. A spouse who has been out of the workforce for two decades and has serious health limitations is not necessarily bound by the upper end of the schedule.
When Courts Depart from the Formula
The guideline amount is a starting point, not a final answer. New York law lists statutory factors the court must consider when deciding whether to deviate from the formula. These include:
- The age and health of both spouses.
- The present and future earning capacity of each spouse, including whether one spouse reduced their career opportunities to care for children or support the other's career.
- The standard of living established during the marriage.
- Whether one spouse needs to obtain education or training to become self-supporting.
- The presence of children in the home and the impact on the custodial parent's ability to work.
- Any wasteful dissipation of marital assets by either party.
A common situation involves a spouse who stepped away from the workforce for several years to raise children while the other spouse's income continued to grow. The formula provides a starting point, but disputes often arise over how long maintenance should continue and how quickly the receiving spouse is expected to become self-supporting. That disagreement plays out through the statutory factors, not through the formula itself.
These factors can push the award higher or lower than the formula. A significant health condition, a large income disparity, or a lifestyle that substantially exceeds what the formula captures can all affect the outcome.
When Maintenance Ends
Post-divorce maintenance terminates automatically on the death of either party or the remarriage of the receiving spouse. Cohabitation is a different matter. A receiving spouse who moves in with a new partner does not automatically lose maintenance under New York law, but the paying spouse can petition to modify or terminate the award, and courts will look at whether the new living arrangement has materially reduced the receiving spouse's financial need.
Modification is also available to either party when circumstances have genuinely changed since the original award. A paying spouse who loses their job or suffers a serious medical event has grounds to seek a reduction. A receiving spouse whose health deteriorates or who cannot find work at the level the court originally projected can seek an extension. The legal standard is a substantial change in circumstances, and courts look at whether the change was foreseeable at the time of the divorce.
The Tax Treatment Has Changed, and Many People Do Not Know It
Many people still assume maintenance works the way it did years ago. It does not. For divorce agreements executed after December 31, 2018, federal tax law no longer allows the paying spouse to deduct maintenance payments, and the receiving spouse no longer reports them as taxable income. Under prior law, the paying spouse received a deduction that reduced the net cost of the payment. That benefit is gone for agreements entered after 2018, and both sides should account for it when evaluating a proposed maintenance figure.
What Creates the Biggest Maintenance Disputes?
The formula gives both sides a number to work from, but contested maintenance cases in Nassau County rarely end at the guideline amount. The paying spouse often argues that the receiving spouse could earn more if they chose to work at their actual capacity, which courts can treat as income for purposes of the formula. The receiving spouse may argue that the standard of living during the marriage, career sacrifices made, or health limitations justify a departure upward.
Self-employed spouses and business owners present a recurring challenge. When income is difficult to verify or is structured to minimize what appears on a tax return, calculating the accurate base for the formula becomes a threshold dispute before the maintenance number can even be set. Cases involving closely held businesses, cash-based income, or significant investment returns often require forensic accounting before the calculation can proceed.
Contact the Law Office of Anthony J. LoPresti
Spousal maintenance can affect both parties for years after a divorce is finalized. Understanding how the formula applies, and when courts depart from it, often shapes settlement discussions from the very beginning.
Whether you are trying to understand what the formula produces in your situation, contesting a proposed award, or seeking a modification of an existing order, the Law Office of Anthony J. LoPresti handles spousal maintenance matters for clients throughout Nassau County and Long Island. Call 516-252-0223 or visit nassaufamilylaw.com.