Factors to be Considered for Spousal Support

By:  Amy B. Egitton

The newly enacted maintenance guidelines provide guidelines for the determination of temporary maintenance and post-divorce maintenance.  The statute provides for a formula for the calculation of maintenance, dependent upon whether or not child support is being paid.  The statute also provides guidelines to calculate maintenance for income that is below the statutory cap ($175,000), for income above the cap, and advisory guidelines for term of maintenance to be paid.

The statute also provides numerous factors that the court can consider in the case of a deviation from the factors or when the income exceeds $175,000.  A deviation can occur when the court finds that the maintenance in accordance with the appropriate formula is “unjust or inappropriate”.

The court can consider the age and health of the parties as that may impact a parties’ ability to earn income.  The court can look at the history of limited participation in the work force, which can be applicable in a case where a party has been out of the work force for a number of years to raise the parties’ children.  In that case, the court can look at the need of that party to incur education and training expenses to re-enter the work force.

Another factor is the wasteful dissipation of assets by a party, including transfers made in contemplation of a matrimonial action. A party will not be caused to suffer for a purposeful or wasteful depletion or secreting of assets.

A court can look at the existence of a pre-marital joint household.  This is a critical factor in a case where two parties have lived together for an extended period of time, then marry, and divorce shortly after.  The court’s consideration of the pre-marital household could have a significant effect on term of maintenance that may be awarded, as the marriage itself may be short term but the joint household long term.

There are a total of 13 factors that the court can consider in these cases for temporary maintenance.  In post-divorce maintenance, the factors are the same but with two additional factors.  One factor is the equitable distribution of marital property and the income or imputed income on the assets distributed.  The court can consider the investment income that would be generated by a significant distributive award, which, dependent on circumstances, may shift the monied vs. non-monied spouse.  The second factor that can be considered in post-divorce maintenance is the contribution of the payee as a spouse, parent, wage earner, and homemaker and to the career or career potential of the other party.  To the extent that the payee contributed what previously would have been enhanced earning capacity, which is no longer a divisible asset under the new statute, a higher maintenance award may be appropriate.

For further information, please do not hesitate to contact me.

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