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Ostrower v Ostrower


2017 Slip Op. 01705


This is an appeal for parts of the judgment of divorce from Nassau County Superior Court. The decision failed to award maintenance fees to the plaintiff, but did award the plaintiff’s counsel the amount of $87,000.

This court affirms that judgment.

The appellant and appellee were married in 1967, and have three children between them. This action for divorce was filed in 2007. There was a nonjury trial held where the distribution of property, counsel and expert fees, and maintenance were decided.

On November 4, 2013, the Supreme Court entered into a judgment for divorce. The plaintiff appeals the portion of the judgment which fails to award expert and maintenance fees. Counsel fees in the amount of $87,000 were awarded.

The issue of maintenance is at the sole discretion of the court, and every case is decided on the merits of the case (Mazzone v. Mazzone 290 AD2d 495, 496, Carr-Harris v. Carr-Harris 98 AD3d 548). The court will look at the standard of living of the parties, the ability of the parties to support themselves, lost earning capacity during the marriage, and their relative health (Domestic Relations Law 236 [B][6][a]; Meccariello v. Meccariello 290 AD2d 495, 496; Heyman v. Heyman 102 AD3d 832, Kret v. Kret 22 AD2d 412). The court felt that in light of the property that the plaintiff received, age and health of the parties, no maintenance was appropriate (Heymann v. Heymann 1023d; Haagen -Islami v Islami 96 AD3d 1004; Scher v Scher 91) Considering the substantial reward received by the plaintiff, this court agrees with the previous court decision (Grumet v Grumet 37 AD 534, 536, Cooper v Cooper 84 AD3d 854).

This court has the discretion to decide what is considered reasonable attorney fees (DeCabera V Cabera-Rosete 70 NY2d 879, Kaplan v Kaplan 51 AD3d 635, Domestic Relations Law 237 [a], Duffy v Duffy 84 AD3d 1151). In determining attorney fees, the court will look at the financial status of both of the parties, in combination with other factors of the case (DeCabera v Cabera-Rosete 70 NY2d 881).

Based on the circumstances of the case, including the substantial award received by the plaintiff, the fact that a majority of legal fees were paid with marital assets, the court was correct limiting the plaintiff’s award of $87,000 (Brink v Brink 55 AD 3d 601; Baron v Baron 71 AD3d 807, Grumet v. Grumet 37 AD3d at 536, Cotter v Cotter 139 AD3d 994).

In the State of New York, maintenance is also known as spousal support or alimony. The concept of maintenance in a divorce setting was created to financially support the lesser-earning spouse. The judge may award temporary support during the trial phase of the case, and when the case is concluded, award permanent maintenance.

The judge has a great deal of discretion on deciding whether to award maintenance, and the amount. As noted above there are various factors that the judge will consider. This can include the length of the marriage, the age of the couple and their health, and their ability to support themselves now.

New York has an online calculator which can be used to give parties a rough idea of what kind of maintenance they can expect. In 2015, a Bill was passed that specifically addresses the amount of maintenance that can be awarded as well as the duration.

According to New York law, when distributing the marital assets, the court isn’t allowed to take into account the spouse’s increased earning capacity as a marital asset.

The bill also established a cap in the payor’s income that can be used for the purposes of calculating the maintenance amount. It has been lowered from $543,000 to $175,000.

Divorces and other family law matters are stressful and can be quite complicated. To add to this, the law is ever-changing. It is important to seek the guidance of legal counsel to ensure that your legal interests are protected.

Speak to the experienced lawyers at Stephen Bilkis and Associates for guidance and a free consultation. We have office locations throughout the New York area, including locations in Manhattan, the Bronx, Brooklyn, Staten Island, Queens, Nassau County, Suffolk County and Westchester County. Call us today at 1-800-NYNYLAW.

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