Alimony or spousal support is financial assistance provided by a person to their spouse. The amount and frequency of alimony payments are decided by either the couple themselves through negotiations or by a judge who has evaluated the couple’s case.
If you earn more than your spouse, the court may be more likely to assign you the role of “monied spouse,” charged with providing your spouse with alimony. While this is not always the case, having to provide spousal maintenance can prevent you from fully moving on and building a new life after your divorce.
An experienced New York spousal support attorney may be able to help you learn more about your rights and your options on how to modify your alimony order or explore legal ways to stop paying it entirely. At the Law Office of Richard Roman Shum, skilled New York divorce attorney Richard Shum offers quality legal assistance in matters of spousal support and other aspects of divorce. To learn more about how we can help you modify an alimony order, call us today at (646) 259-3416 to schedule a free consultation.
How To Determine Who Qualifies for Spousal Support
In New York, the court usually assigns spousal support depending on the financial capability of each spouse. The court will prioritize giving alimony to a spouse who can demonstrate that they have a financial need for support. The court initially only order alimony on a temporary basis depending on the time the court determines would be enough for the payee spouse to get back on their feet.
There are three types of alimony in New York:
- Temporary spousal support
- Post-divorce alimony
- Permanent or “non-durational” alimony
Temporary Alimony in New York
Temporary alimony in New York lasts during the duration of the divorce proceedings themselves. New York courts have a formula they use to calculate the suggested amount of temporary alimony. If the court determines the baseline support determined by the calculator to be unjust or inappropriate, a judge can increase or decrease the amount as they see fit.
The amount of temporary alimony is determined by each party’s income (up to $203,000 of the spouses’ net income) and whether the payor spouse will also have to pay child support on top of paying alimony. Temporary alimony does not affect the court’s decision regarding the awarding of post-divorce spousal maintenance.
Temporary alimony ends when the divorce is final or either spouse passes away.
Post-divorce Alimony
Post-divorce alimony or spousal maintenance can either be durational or non-durational. Durational alimony lasts for a fixed amount of time depending on how long the couple has been married:
- 15% – 30% of the time married for couples married for less than or equal to 15 years
- 30% – 40% of the time married for couples married for more than 15 years but less than 20 years
- 35% – 50% of the time married for couples married for more than 20 years
The calculation based on the duration of the marriage can be treated by a judge as a jumping-off point when deciding the duration of alimony. A judge can also use other factors (N.Y. Dom. Rel. Law § 236(6)(e) (2022)) to determine how long they can award alimony:
- Age and health of each spouse
- Each spouse’s present and future earning capacity
- Any child support award on top of spousal support
- Wasteful or unjust use of marital property
- Whether the spouses were living together before marriage or living separately before the divorce
- Any acts committed by one spouse to the other that prevented them from obtaining meaningful employment such as financial abuse or domestic violence
- Whether the spouses have medical insurance
- Whether a spouse was prevented from continuing a career due to care for children or other family members
- Tax consequences to each spouse
- The couple’s standard of living during the marriage
- Whether a payee spouse gave up or delayed further education or career opportunities in favor of the marriage
- Distribution of marital assets and whether each spouse can get any income from the properties
- Contributions or services of a payee spouse to the payor such as taking care of the household so that the payor can focus on their career
- Any factor the court believes is justifiable to take into consideration
For high-earners, any amount above the $203,000 previously considered would not affect the baseline calculation unless the judge determines that following the baseline is unjust or inappropriate. If the court decides that a deviation from the baseline is in order, the new amount will be put in writing including the reasoning and the factors the court used to come to that determination.
A post-divorce award lasts until the term of the alimony runs its course, the award is modified, either spouse dies, or the payee spouse remarries. In some cases, it may be changed when a payee spouse starts cohabitating with another person. (N.Y. Dom. Rel. § 236B(a))
Permanent Alimony in New York
In cases where the couple has been married for a long time and one of the spouses has never had the opportunity to build a career to take care of the family or because the other spouse had a high income. The court can also award non-durational alimony under the following circumstances:
- Age – If the payee spouse was not able to support themselves due to stopping their career to take care of the house or children, and they are at an age wherein it would be difficult to reenter the workforce, they may be awarded alimony. Permanent alimony can also be awarded if the judge decides that the assets the payee spouse would get in the divorce would not be enough to support them financially.
- Medical need – If a payee spouse has a severe medical condition or has a disability that prevents them from being self-sufficient, the court can award them permanent alimony
- Financial dependence – If the judge determines that the payee spouse does not have the ability to become financially independent for any reason, the court can award them permanent alimony
Non-durational alimony in New York will end if either spouse dies or the payee spouse remarries. It can also end if there are changes in the quality of life of either the payor or the payee spouse.
How Is Alimony Paid in New York?
New York courts typically order spousal support to be paid in a monthly fashion. Depending on the spouses’ agreement, they can arrange a monthly direct deposit payment without interference from the court. In cases where the spouses cannot agree on the schedule and the method of payments, the court can instead arrange an income withholding order from the payor spouse’s account to ensure the collection of alimony payments.
Should a payor spouse miss payments, the payee spouse can file a formal complaint with the court and request an order to collect the missed payments.
Lump sum payments of alimony can also be awarded subject to a court order or the spouses’ agreement. Before choosing to pay a lump sum for your alimony payment, you should consider the tax implications of doing so. Your spouse may also remarry before the ordered duration of the alimony payments are due, forfeiting the alimony. Before you make any decisions, it is important to seek the help of an experienced New York spousal support attorney.
At the Law Office of Richard Roman Shum, our attorneys work hard to provide quality legal support and representation to clients involved in matters of family law. Our skilled New York spousal support attorneys may be able to guide you through the roles and responsibilities of being a payor spouse in an alimony case. Call us today at (646) 259-3416 to schedule a free consultation.
How To Avoid Paying Alimony
Paying alimony can be a considerable financial strain to the payor spouse. If the divorce is highly contentious, having to pay spousal support or maintenance may feel like rubbing salt into the wound. However, not paying alimony after being ordered to by the court can result in devastating consequences.
Approaching the matter of avoiding alimony should be done with careful consideration of the factors surrounding your divorce. There are also some practical and legal methods you can utilize to avoid having to pay spousal support or maintenance in New York.
Creating a Prenuptial or Postnuptial Agreement
A prenuptial agreement can explicitly establish the assets and liabilities each spouse will bring into the marriage. A prenuptial agreement can also include a financial statement from each spouse and lay out exactly which asset belongs to which spouse.
If you have already finalized your marriage, you can also create a postnuptial agreement. A postnuptial contains essentially the same information as a prenuptial agreement, but is created after the marriage.
You should consider having a skilled New York marital agreement attorney draft your documents to make sure they will be enforced by a judge. Having the help of an experienced attorney can ensure that your best interests are protected in the agreement and that it is legally binding.
Give Your Spouse Assets Instead of Spousal Support
If the possibility of creating a prenuptial or a postnuptial agreement is moot due to disagreements with your spouse, you may consider negotiating with your spouse and giving them a larger share of the marital assets, assets that give off income, your marital home, or a bigger chunk of any retirement funds you share.
The court may also decide more favorably on your behalf if you keep friendly communication with your spouse as it shows your willingness to cooperate and negotiate on the specifics of your divorce.
Request a Vocational Evaluation From the Court
If you have reason to believe that your spouse is remaining as a stay-at-home parent even if it is not strictly necessary, you may be able to request the court to conduct a vocational evaluation. A vocational evaluation carefully considers your spouse’s wage-earning capacity and whether they can reenter the workplace with ease after the divorce.
There is still a chance that the court will require you to pay temporary alimony until the divorce is finalized. While this may feel like a personal offense, especially if the divorce is contentious, it is important to remember that alimony payments are intended to help your spouse get back on their feet and allow themselves to be financially independent. Short-term alimony is a small price to pay, especially if your spouse gave up or postponed career opportunities to help establish your family or advance your career.
Submit Proof That Your Spouse Does Not Require Spousal Maintenance
There are cases in which an ex-spouse would only use obtaining spousal maintenance payments to get back to their ex meaning they don’t require the money to maintain their standard of living. Perhaps your spouse has access to a large inheritance or savings account, or perhaps a trust fund with a large stock portfolio. If this is the case, you may be able to seek legal assistance to declare your and your spouse’s complete financial statements and remove any doubt that your spouse can manage even without spousal maintenance.
Reduce Your Spending Where Possible
Given that getting a divorce can be a financially intensive process, it’s likely that you have already made a lot of lifestyle changes to accommodate that cost. It may be a good idea to evaluate your expenses, making sure to live within your means. If your spouse petitions the court for alimony, your monthly expenses and income will be among the factors considered by the judge in determining whether to award spousal support or maintenance.
Another important factor to consider is to never waste marital assets while in the process of finalizing your divorce. While you may feel like it is within your right to spend your marital funds as a result of the divorce, financially irresponsible acts can count as a demerit against you when the court is evaluating whether to award alimony to your spouse.
File Your Divorce Sooner Rather Than Later
It can be ridiculous to think of divorce as the solution to a disagreement, compared to working things through. However, dragging your feet in filing a divorce can cause you more heartache and a longer duration of alimony payments, given that the length of a marriage is a factor in determining the duration of alimony. If you feel that your marriage is not going to last, it may be best to file for a divorce as soon as you can.
Stay Informed About Your Spouse’s Relationships
You will no longer be required to pay spousal maintenance if your ex-spouse has remarried. If your spouse has begun cohabitating with a new partner, you may be able to stop paying as well. You should get the advice of your New York divorce attorney to determine whether you are required to continue paying spousal maintenance after your ex-spouse has begun living together with a new partner.
File a Fault Divorce
New York laws allow the filing of fault divorces, meaning a spousal act was the reason for the breakdown of the marriage. If you are a victim of spousal abuse or if your spouse was adulterous, you can file a fault divorce to lessen the chances of them being awarded alimony. You will need to provide proof of the wrongdoing to support your claim. The judge will also be the one to decide whether the fault-based grounds for the divorce have merit.
Working with an experienced New York contested divorce attorney who can protect your best interests and help you understand your rights under the law is essential. New York contested divorce attorney Richard Shum may be able to walk you through the process of filing a fault-based divorce. Our attorneys at the Law Office of Richard Roman Shum provide quality legal counsel and aggressive representation in the interest of protecting our clients’ rights. Call us today at (646) 259-3416 to schedule a free consultation.
How Do I Modify an Alimony Order or Stop Paying if I Have Already Been Ordered by the Court?
The main purpose of alimony and spousal maintenance is to help your spouse get back on their feet after a divorce. In most cases, awarding alimony is not meant to be a punishment to the payor spouse. You have the right to petition the court to modify the spousal support originally awarded to your spouse if:
- You experience financial hardship as a result of a lifestyle change
- You retire
- You lose your job or make less money than you did before the divorce was finalized
- Your spouse has gotten a job and become financially independent
- Your spouse remarries
- You contract an illness or sustain a disability that keeps you from working
These grounds may be useful, especially if the court has awarded permanent alimony to your spouse. However, if your financial hardship is self-induced, meaning you quit your job and became unemployed just to avoid paying alimony, the court may disregard your petition and order you to continue paying the same amount of spousal support or maintenance.
Get the Help of an Experienced New York Spousal Support Attorney
Stopping the payment of alimony out of the blue can have enormous legal repercussions. Without a valid reason and without following the appropriate legal processes to modify your spousal support order, the court can order your wages to be garnished and use it to pay your outstanding payments. Any tax refund you receive may also be seized to pay for spousal support. In the worst-case scenario, a judge can hold you in contempt of court and sentence you to jail.
Richard Shum, a top-rated New York spousal support attorney, may be able to help you petition a modification of your spousal support order. At the Law Office of Richard Roman Shum, we understand the importance of being able to start anew after a divorce. This can be challenging if you are experiencing a financial strain in the form of having to pay spousal support.
Our skilled attorneys can help determine the legal options available for you to avoid paying a large amount of money for alimony or avoid paying it entirely. To schedule a complimentary consultation with one of our experienced New York spousal support attorneys, call us today at (646) 259-3416.
from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/how-to-avoid-paying-alimony-in-new-york/
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