2017 NY Slip Op 05807
July 26, 2017
The parties were married and have two children, who are now emancipated. Over the course of the marriage, the plaintiff was a housewife and the primary caregiver to the children. The defendant owned a restaurant in New York City. The plaintiff brought this action after twenty-two years of marriage, requesting a divorce and spousal support. A trial was held regarding spousal support and the distribution of the marital property. The Supreme Court decided that the plaintiff was awarded the marital residence, and the defendant was awarded $315,000 for his share of the equity in the home. Maintenance was awarded to the plaintiff in the amount of $5,000 per month, decreasing incrementally over time and ending in 2023. The plaintiff was awarded $514,000 as her share of the other real estate, as well as $83,000 that the defendant had taken from the account. The defendant appealed the decision.
The court said that the issue of maintenance is left to the discretion of the court, and every case is decided on its merits (Repetti v Repetti 147 AD3d 1096).
In determining maintenance, the court will look at various factors including the duration of the marriage, the health of the parties, and their respective earning capacity (Horn v Horn 145 AD3d 666). The purpose of maintenance is to give the spouse financial independence and give them time to become self-supporting (Sansone v Sansone 144 AD3d 885). In this instance, the court felt that is was a wise decision (Ralis v Ralis 146 AD3d 831, Maddalini v Maddalini 142 AD3d 646, Bogenschiltz v Green 144 AD3d 959.
The supreme court didn’t unwisely decide to decline the sale of the house. This is particularly true because the defendant received a share of the money as part of the equity of the house (Taverna v Taverna 56 AD3d 461, Jarrell v Jarrell 276 AD2d 353, Puglisi v Puglisi 16 AD3d 477).
The court wisely used its discretion in not taking into account the defendant’s tax liabilities for the future sale of the property. The defendant failed to bring any evidence regarding tax liability. The court isn’t required to consider the tax consequences of its’ awards (Taverna v Taverna 56 AD3d 462, Peritore v Peritore 66 AD3d 750).
The defendant brought up several other items, however it was within the discretion of the court, and the defendant provided no evidence to the contrary (White v Farrell 20 NY3d 487, Hatem v Hatem 83 AD3d 663).
In the state of New York, maintenance is also referred to as spousal support, or alimony. As discussed in this case, the court will look at various factors to determine if maintenance is appropriate. These can include:
- Length of marriage
- Present and future earning capacity
- Did children affect earning capacity?
- The distribution of marital property
- Need for education and training
- Age of the parties
Temporary maintenance only lasts the duration of the divorce proceedings. Once complete, the judge can order permanent support for any duration he deems appropriate. This can last for several years, of be in effect until the death of either spouse or if the receiving spouse gets remarried.
Similar to child support, the court uses a set calculation to arrive at a fair temporary support number. There is no set formula for calculating permanent support. Temporary support is a calculation based on the percentage of the spouses’ income. The formula says that is should be the lesser of: 30% of the higher income minus 20% of the lesser income, or 40% of the combined income.
Before filing for a divorce, it is important to speak with legal counsel to determine what these numbers work out to. There is a presumption that during the divorce proceedings the higher earning spouse is to support the lower earning spouse.
Spousal support is not automatically granted in every instance. In some cases, it has been waived, as in the case of having a prenuptial agreement. In this case the court would be able to award support until the agreement was vacated.
If you are contemplating divorce, it is important that your legal rights are protected. Speak with the legal team at Stephen Bilkis and Associates. They will provide you with legal advice and a free consultation. They have offices throughout New York, including locations in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today for a free consultation at 1-800-NYNYLAW.