Spousal Maintenance Part 1 – What Is It?

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NYS Calculations for Temporary and Post-Divorce Spousal MaintenanceFinancial security can be a scary and emotional conversation even in healthy marriages.

When you and your spouse made money decisions during the good years of your relationship, each of you filtered those ideas and decisions through your “love” lens. By that I mean you both probably had each other’s interests at heart when making such decisions.

In the divorce process, your love lenses are gone as are many of the partnership goals. One or both of you may be worried about the divorce’s impact on your individual lifestyle and financial future. Each of you may look at financial decisions during and after the divorce through your “scared, self-protective” lens.

Divorce brings extra stress and issues to the discussion because marital money now has to be shared between two people with separate goals. What is enough? Who decides? How much? For how long?

One Tablecloth That Covers Two Tables

Sharing money between divorcing couples is always a difficult conversation. It is hard to put one tablecloth (combined gross income) over two tables (households). Both people will often have less money to spend.

This is one of the areas for which divorce mediation is really useful. I help my clients balance the past decisions with future needs, communicate concerns and worries, and find common ground.

Sometimes One Spouse Needs Financial Support

The intent of spousal payments is to allow both parties to have reasonably comparable lifestyles for a period of time.

The notion of providing financial support to a spouse during or after divorce is often harder for the paying spouse to understand and accept than child support. While child support payments may present a strain on budgets, it seems more acceptable because it is about caring for the children. (See my child support posts, Part 1 and Part 2, for more information.)

Also, the issue of one spouse paying the other is gender-neutral. There are many fewer cases where men have sought spousal maintenance. Courts award spousal payments to men and women. There seem to be fewer cases where men are awarded spousal maintenance because men continue to earn more, on average, than women, and they stay in the workforce after children are born.

Lastly, New York courts do not typically consider marital fault when deciding whether to award maintenance. The general understanding is that marital fault is separate from the economic issues during a divorce.

Federal and State Income Tax Implications of Spousal Maintenance

Federal Income Tax Changes Regarding Spousal Maintenance

The 2017 Tax Cuts and Jobs Act eliminated the “alimony” deduction from federal income tax calculations. The new law does not apply to maintenance provisions found in Separation Agreements or Judgments of Divorce entered into before Dec. 31, 2018.

However, if neither an Agreement nor Judgment of Divorce was in place by Dec. 31, 2018, spousal maintenance is no longer deductible on the payor’s federal income tax return. Conversely, the recipient receives the maintenance tax free. See IRS Publication 504 (2023 version), “Divorced or Separated Individuals,” page 16 for details and examples. The same Pub 504 link should work in subsequent years.

The official IRS website, “Topic no. 452, Alimony and separate maintenance,” provides more information, including the above tax change, just not in as much detail as in Pub 504.

For those with agreements in place on or before Dec 31, 2018, Pub 504 includes information on how to navigate your 2023 return:

  • It states what qualifies as alimony or separate maintenance.
  • “If you paid amounts that are considered taxable alimony or separate maintenance, you may deduct from income the amount of alimony or separate maintenance you paid whether or not you itemize your deductions.”
  • “If you received amounts that are considered taxable alimony or separate maintenance, you must include the amount of alimony or separate maintenance you received as income.”

New York State Income Tax of Spousal Support

The federal law discussed above does not affect NYS taxes. Spousal support received is still currently NYS taxable to the recipient and a NYS tax deduction to the payor. This NYS Department of Taxation and Finance “Technical Memo” dated 12/28/2018 “addresses areas where New York’s tax treatment of certain federal items of income and deductions will now differ for tax years 2018 and after,” including alimony or separate maintenance payments.

Note that it’s important that the payment details that the payor and the receiver report on their respective tax forms match.

Please consult your divorce mediator and accountant to insert correct wording in your separation / spousal maintenance agreement regarding the 2017 law.

Two Categories of Spousal Payments: During and After Divorce

This is where the spousal payment discussions can become really confusing. Multiple terms like “spousal support,” “spousal maintenance,” “alimony,” and others are used by attorneys, the federal and state legal systems and documents, the general public, and books, web sites, and blogs, all of them trying to help people understand divorce.

For example, the federal government, for income tax purposes, uses the term “alimony,” which can possibly include both pre-divorce and post-divorce income, depending on the context. (See Additional Divorce Spousal Support Resources at the bottom of this post for relevant links.)

In New York, spousal maintenance is referred to in three different ways: as alimony, spousal support, and spousal maintenance. All refer to the process in which one spouse pays the other to provide financial support. Other states may use entirely different terms.

The term “spousal support” is particularly confusing. Some web sites and other references use it as a synonym for the temporary payments, some for the payments after the divorce is final, and some as a generic term covering the entire category of paying a spouse an income for housing, food, clothing, and related living expenses relating to divorce.

Here are the two most common circumstances for one spouse to receive financial support from the other.

  • One is “temporary,” that is, paid before the divorce is final.
  • The other is “post-divorce,” after the divorce is final.

Below I define the terms I use in my posts related to this topic.

Temporary Spousal Maintenance (TSM) During the Divorce Process

While the couple is working through the divorce process, one spouse may still need money from the other to pay bills and take care of his or her other needs until the financial details are worked out and the divorce becomes final. Generally, the couple lives separately, but sometimes a couple may still reside in the same home while TSM is being paid to the receiving spouse.

In NYS, the legal term for this is temporary spousal maintenance (TSM). Pendente lite, or temporary maintenance, is paid while the divorce case is pending. The intent is to provide the supported spouse with immediate financial need by taking into consideration the supported spouse’s reasonable needs and the pre-divorce standard of living. Temporary maintenance ends when the Judgment of Divorce is awarded and the post-divorce maintenance is detailed, if applicable.

For more information, please read “Spousal Maintenance Part 2 – Temporary.”

Post-Divorce Spousal Maintenance (SM)

This is awarded to the supported spouse starting at the time the divorce becomes final. It is intended to provide funds for the lower-income spouse to maintain a self-sufficient income and/or comparable life style.

SM awards are final orders by the court and can either be durational or non-durational.

  • Durational maintenance is paid for a fixed period of time. This is based on the idea that the receiving spouse will become self-supporting after several years.
  • Non-durational maintenance, also called lifetime maintenance, will be paid for the supported spouse’s lifetime. While rare, courts have awarded non-durational maintenance in special circumstances, for example, where one spouse is older, unlikely to find employment, or has an illness.

For more information, please read “Spousal Maintenance Part 3 – Post-Divorce.”

The 2015 NYS Revisions of Spousal Support Guidelines

On September 25, 2015, the governor of New York State signed into law extensive revisions to the Domestic Relations Law and particularly to spousal support guidelines. (Read the legal version here.)

It’s important to know that the law provides guidelines, not rules, for spousal maintenance.

  • Nothing in this act prohibits divorcing spouses from entering into validly executed agreements which deviate from the maintenance guidelines.
  • Judges are not required to scrutinize agreements concerning temporary and post-divorce maintenance for compliance with the new spousal maintenance guidelines.

Nothing in the act affects the validity of agreements made prior to the effective dates of the legislation. Temporary maintenance and post-divorce spousal maintenance finalized prior to the relevant dates below are not affected by this law.

  • The 2015 law affects only those temporary maintenance provisions that were in effect on or after Monday, October 26, 2015.
  • The other provisions of this law address post-divorce maintenance, Family Court spousal support, and the elimination of “enhanced earning capacity.” These provisions are applicable to matrimonial actions commenced on or after Monday, January 25, 2016.

Among the most anticipated revisions is the elimination of enhanced earning capacity as a marital asset. This means that courts are no longer required to determine the lifetime value of a license or professional degree earned during the marriage.

The 2015 NYS law lowered the income cap for the payor in the spousal maintenance formulas from $543,000 to $178,000. Beginning January 31, 2016, the cap is adjusted every two years by the Cost-Of-Living Adjustment (COLA). The March 1, 2020 value for the spousal maintenance payor income cap is $192,000.

Links to Spousal Maintenance Series

Additional Divorce Spousal Support Resources

Resources on NYS Spousal Maintenance Law

Photo Credit: ©Can Stock Photo

This blog and its materials have been prepared by BJ Mediation Services for informational purposes only and are not intended to be, are not, and should not be regarded as, legal or financial advice. Internet subscribers and online readers should not act upon this information without seeking professional counsel.


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