There are two types of financial arrangements between spouses in New York. One is spousal support and the other is spousal maintenance The difference between the two is that spousal support is given to one spouse by another while the couple is still married. Spousal maintenance is given by one spouse to another after a divorce.

In the state of New York, alimony is known as spousal maintenance and prior to 1980, only wives were able to receive alimony in the United States. In 1979, in Orr v. Orr No. 77-1119, it was argued that women, as well as men, should have to pay alimony to a spouse who was in the same situation as a woman, that men should be eligible to also receive support from a wife who was in healthier financial circumstances than he was.

The Supreme Court decided the case by ruling that gender-based statutes in regards to divorce were unconstitutional. All 50 states then revised their alimony laws to reflect both genders eligible for alimony. Alimony or spousal support in New York is found in Domestic Relations Law 236¹ and consists of a Part A and Part B.

Spousal maintenance is usually granted for one spouse by the other who is more financially secure than their partner. The reasons can be varied but generally, it is used to assist one spouse in gaining financial independence from the other spouse. It can also be granted to allow one spouse to continue to maintain the level of lifestyle they had when married.

There are several factors that must be considered when the court is deciding on whether to grant spousal maintenance, how much it will be and for how long. Each case is unique with various elements to each case that will affect the outcome. By no means an exhaustive list, some of the following is what the court will use to help decide spousal maintenance:

• Income of both spouses
• Length of marriage
• Age and health of both spouses
• Present and future earning capacity of both spouses
• Distribution of marital property
• Tax and debts of both spouses
• Loss of Health Benefits of one spouse
• Where children reside
• Number of children

Spousal maintenance usually ends with the death of one of the parties, if the ex-spouse receiving the support remarries or if there was a time limit ordered for the maintenance and it has expired.

Spousal maintenance can be modified at any time, however, the court will need proof shown as to why one of the parties needs the maintenance order changed. Other than death or re-marriage, some of the following reasons are common for why a spousal maintenance order is modified:

• The spouse supporting the other loses their job
• The spouse supporting the other has an income decrease or increase
• The spouse who is receiving support becomes self-supporting
• The spouse receiving support starts living with another partner
• The spouse supporting experiences and illness

There are instances where a spouse’s social security benefits can be used in the determination of maintenance and the Social Security Administration (SSA) will withhold benefits in order to enforce spousal maintenance orders by the court. If you do not pay your spousal support maintenance, a garnishment of your wages can occur and the SSA will honor that.

Only an alimony or spousal support lawyer, knowing all the facts of your case, can advise you of what can be included, if you can receive spousal maintenance and how much that would be if you do receive it.

There are some instances when one spouse will attempt to hide assets from the other spouse so that less spousal maintenance will be awarded. In the state of New York, in the event of a divorce, each spouse is required to submit a Net Worth Statement, a financial disclosure which is a sworn affidavit to the court revealing their complete assets and holdings.

Either party not complying with this requirement will be subject to court penalties and fines. In the event that one spouse has great financial wealth, a lawyer may hire investigators to determine if they are hiding wealth that would influence the outcome of their client’s spousal maintenance award.

There are many variables involved in an alimony or spousal maintenance case and requirements that must be met by each party. It is always wise to disclose all facts and financial information to your lawyer even if you don’t think it is important as there are many things the court must consider when awarding spousal maintenance.

¹New York Consolidated Laws, Domestic Relations Law – DOM § 236. Special controlling provisions;  prior actions or proceedings;  new actions or proceedings, Find Law, http://codes.findlaw.com/ny/domestic-relations-law/dom-sect-236.html (last visited Jan 3, 2018).

Can a spouse successfully prevent a court from granting a divorce?

If an individual wants to get a divorce, can his or her spouse prevent it from happening? Ultimately, the answer to that question is it depends. As a matter of public policy, the law doesn’t want to interpreted in a manner that would keep someone in a marriage against his or her will. However, there are some defenses that may be used to stop a fault divorce.

Objecting to the Divorce Actually Justifies It

A divorce may be labeled as either fault or no-fault. A no-fault divorce generally takes place under the theory that there are irreconcilable differences between the two. Although it may seem odd at first, it makes sense that failing to agree as to whether or not a marriage should end is a difference that cannot be reconciled. If a divorce is classified as a fault case, it means that one spouse has abused the other, abandoned the other or has committed adultery.

Defenses Against a Fault Defense

While the odds of stopping a divorce for fault may be slim, there are reasons why a judge would refuse to allow the case to proceed. Let’s say that a wife is suing for divorce claiming that her husband was cheating on her. The husband may be able to claim that he was duped into committing the act.

This is referred to as connivance and means in this case that the wife connived her husband into committing the act. Of course, a husband could also be guilty of this if he connived his wife into adultery or some other act that lead to a request for divorce.

Another possible defense is to claim that a spouse condoned a specific type of behavior. In other words, a husband may have allowed his wife to leave for long periods at a time or wife may have allowed her husband to engage in relationships with other women.

Finally, collusion could be a defense against a divorce ultimately being granted. If a state requires a separation period before a no-fault divorce, the couple may claim that the divorce occurred because of the fault of one party or the other even if nothing happened. However, either spouse may use this as a defense if either decides to not follow through with the divorce.

A Divorce May Be Postponed

In a divorce proceeding, each side must be served with the proper paperwork that then must be filed with the court. It may be possible for both parties to agree to put their divorce on hold or withdraw their petition before the other party responds. In some cases, a judge may have discretion as to whether or not a divorce should proceed if both parties agree to make their marriage work after filing their papers.

Often, a couple will try to make their relationship work for the sake of their children. It is usually in a child’s best interest to have both parents in his or her life, which means that both parents will still have to see and talk to each other. Therefore, it may be easier to stay together if it can be done.

Can a divorce be prevented? While possible, it is unlikely unless both parties agree to that happening. In many cases, it is better to recognize that the relationship is over and try to preserve whatever may be left of it for that individual’s sake as well as the sake of any children that the couple may have had. If you don’t have a divorce lawyer currently hired, consider speaking to our NYC divorce attorneys today.