Can I Get Alimony in My Divorce? | Divorce & Family Legal

Divorce is a challenging process, especially when it comes to untangling finances.

One common concern is whether one spouse can receive alimony (also known as spousal support) as financial support after separating.

In Albany and throughout New York, alimony is not an automatic part of every divorce – it is awarded in a minority of cases (roughly 10% of divorces) where one spouse demonstrates need, and the other has the ability to pay.

Every situation is unique. Sometimes the spouses agree on an appropriate support arrangement in a separation agreement, and other times the decision is left to a judge.

Understanding Spousal Support in a New York Divorce

"Alimony" is formally called “spousal maintenance" in The Big Apple. It is a court-ordered financial support payment from one spouse to the other during or after a divorce.

The principle is that if one spouse lacks sufficient income or assets to maintain a reasonable standard of living post-divorce, the other spouse may be required to pay spousal support.

This helps the recipient spouse transition financially after the marriage ends.

However, spousal support payments aren't included in child support. If the divorcing couple has children, the court will likely order child support for the benefit of the offspring, in addition to any spousal support for the ex-spouse.

How to Request Alimony During Divorce Proceedings

When a couple files for divorce in New York, either spouse can request alimony as part of the divorce proceedings.

This is done by asking the family court for spousal maintenance in the divorce petition or response, or by filing a separate motion for temporary support. There are two phases when support might be awarded:

Temporary Alimony (Pendente Lite Maintenance)

This is support paid during the divorce case itself, before the divorce is final.

Divorces can take many months or even years to conclude, so temporary alimony payments ensure the lower-income spouse can meet expenses in the interim.

Post-divorce Alimony (Final Spousal Maintenance)

This term describes alimony payments that begin after the divorce is final, as ordered in the divorce judgment or settlement.

When the divorce decree is issued, any temporary maintenance order is superseded by the final maintenance terms.

However, what if the couple is separated but not yet filing for divorce? In New York, a spouse who needs support before initiating a divorce can file a petition for spousal support.

The court can order one partner to pay support to the receiving spouse even if no divorce action is underway. Divorce and Family Legal, LLC can also advise on questions such as Can I get sole custody of my children?

Factors That Influence Alimony Payments: How Does a Judge Decide?

If spouses cannot agree on spousal maintenance, the court will examine many factors to determine a fair alimony award.

New York law provides a guideline formula for calculating the amount of maintenance, especially for temporary orders. This formula takes into account both parties’ incomes and yields a baseline amount.

Length of the Marriage

Generally, longer marriages (15 years or more) are more likely to result in an alimony award, and potentially for a longer duration.

Income and Earning Capacity

The court looks at each spouse’s income, assets, and financial circumstances, as well as their future earning capacity. Divorce and Family Legal, LLC will advise on questions like Can I get the family home in a divorce?

If one partner has a significantly higher income or greater earning potential, that spouse may be expected to pay alimony to assist the other.

Presence of Children and Child Care

If one partner has custody of the children and needs to stay home or work reduced hours to care for them, this can affect earning ability and may warrant spousal support.

Types of Alimony in New York: Temporary, Rehabilitative, and Permanent

Not all spousal maintenance is alike. There are a few types of alimony a court might award, depending on the needs and circumstances:

Temporary Maintenance

As described earlier, this is support paid only while the divorce is pending. It ensures immediate relief and maintains the status quo until a final order is in place.

Temporary maintenance is calculated by a formula and is meant to cover the receiving spouse’s basic expenses during the separation period.

Rehabilitative Alimony

The court may award alimony in this form to help a dependent spouse become self-sufficient. It is usually durational (temporary) support paid for a set time after the divorce.

Durational (Term) Maintenance

Most post-divorce maintenance in New York is for a defined term (number of months or years). The court tailors the length to the case.

After a 10-year marriage, the court order might award spousal support for perhaps two to five years. The goal is to assist for a transition period rather than indefinitely.

When Does One Need to Permanently Pay Alimony?

Truly lifelong or permanent alimony is rare in New York today.

It is generally reserved for exceptional situations – typically long marriages where the recipient is older or unable to become self-sufficient due to age or disability.

Alimony Vs. Child Support: Different Obligations According to the Family Court

Child support is money paid by the non-custodial parent to the custodial parent to contribute to the expenses of raising the couple’s children (housing, food, education, etc.).

Spousal support, on the other hand, is for the benefit of the former husband or wife.

Tax Implications of Alimony Payments Once the Divorce Is Final

Alimony had significant tax consequences for many years. The payer spouse could deduct alimony payments on their taxes, and the receiving spouse had to report alimony as taxable income.

However, U.S. tax law changed in 2019. Under the Tax Cuts and Jobs Act, spousal support agreements or orders finalized on or after January 1st, 2019, are no longer tax-deductible for the payer, nor taxable for the recipient spouse.

Do All People Have to Pay Taxes the Same Way?

In short, no. In this event, for divorces that were finalized before the end of 2018 (or certain modified orders from earlier divorces), the old tax rules may still apply – those payers can continue to deduct and recipients must report the income, unless they explicitly opt-in to the new system when modifying an order. A divorce law firm in Albany NY may be able to help.

Speak to a Lawyer

A spouse may receive alimony if there is a demonstrated financial need and the other partner has the means to provide support.

Going through a divorce in Albany or anywhere in New York, it’s wise for each party to consult with a knowledgeable divorce attorney from the Divorce & Family Legal firm.

If an agreement isn’t possible, a lawyer will prepare evidence and arguments to present the strongest case to the court.