What is maintenance?
Maintenance is a periodic payment made to a spouse by the other spouse for his or her support. If it is made during an action for divorce, it is called temporary maintenance, and if it is made after the divorce, it is called permanent maintenance, even if it is limited in duration to a period of months or years and is not truly "permanent."

How is spousal support different from maintenance?
The critical difference between spousal support and maintenance is that spousal support is awarded to a dependent spouse in an intact marriage. Because an intact marriage has no set duration, spousal support also continues indefinitely. There are two ways spousal support can be awarded: (1) in a proceeding brought in Family Court for spousal support (often brought in the same petition for child support); and (2) as a component of a judgment of separation (as opposed to a judgment of divorce) which is rarely used today. Though spousal support has no expiration date, it is not a substitute for maintenance where the parties are likely to be divorced, since spousal support terminates in all cases when a judgment of divorce is issued.


Who is eligible for maintenance?
There are no strict rules in place for who is eligible to receive permanent maintenance from a former spouse. Generally speaking, there must be a substantial difference in the incomes of the parties before the Court will grant a maintenance award to the lower-earning spouse. However, a recent revision to the law provides a formula to determine the amount that should be paid for temporary maintenance. In addition to setting the amount of temporary maintenance, the law establishes a threshold for eligibility. For incomes less than $500,000, if the amount of the payee's income is more than 40% of the sum of both parties' income, then the guideline amount of temporary maintenance is "zero" dollars.

 
For how long is maintenance paid?
There is no strict rule that limits how long maintenance will last. However, since the adoption of the equitable distribution law in New York in 1980, courts have awarded rehabilitative maintenance, which is designed to enable the dependent spouse to become financially independent. The emphasis on rehabilitation means that awards are generally limited to a number of years starting at the date of the judgment of divorce. Conventionally, the duration of a rehabilitative award will not exceed one-half of the length of the marriage, and often much less than that. The duration is guided by factors set forth in the statute; however, these factors are vague. Individual judges have widely different views of the appropriate duration of maintenance, making it difficult to predict. The courts have continued to award lifetime maintenance awards in cases where rehabilitation is unlikely, such as when the dependent spouse is disabled and unable to work, or advanced in years. In all cases, maintenance will terminate upon death or remarriage. Often, when settling, the parties will agree to also terminate maintenance upon the cohabitation of the dependent spouse with a paramour.

How much maintenance will be awarded?
The amount that a court awards for permanent maintenance is case specific, and will vary with the standard of living of the parties prior to the separation, the reasonable needs of the dependent spouse as well as the ability to pay of the payor spouse. In addition, there are numerous statutory factors that a court may consider, including the availability and cost of medical insurance to the dependent spouse. As with duration, the determination of the amount of permanent maintenance is highly discretionary; some judges emphasize prior standard of living over ability to pay of the payor, and tend to grant larger maintenance awards, especially where the children will be residing with the dependent spouse. Other judges look more at the effect on the ability of the payor spouse to pay, and tend to grant smaller maintenance awards. On the other hand, the new temporary maintenance law creates a presumptively correct amount of temporary maintenance derived by mathematical formula. Of course, temporary maintenance ends when the judgment of divorce is granted, so this has limited impact in satisfying the support needs of the dependent spouse in the long term.