Spousal maintenance, called alimony in many other states, is one of the most contested issues in a New York divorce. The amount, duration, and modifiability of a maintenance award affect the financial trajectory of both spouses for years, sometimes decades. Since 2015, New York has used a statutory formula to calculate maintenance, replacing the more discretionary system that preceded it. The formula provides a presumptive number, but courts retain discretion to deviate based on a list of factors, and the rules differ for temporary maintenance during the divorce action versus post-divorce maintenance after judgment. This guide walks through how the formula works, what factors drive deviation, how duration is determined, and how maintenance can be modified or terminated after divorce. For broader context on the New York divorce process, our complete NYC divorce guide walks through every stage of the proceeding.
Two Types of Maintenance: Temporary and Post-Divorce
New York law distinguishes between two kinds of maintenance, each governed by a separate statutory provision and each calculated by its own formula. Understanding which provision applies at which stage is the foundation of any maintenance analysis.
Temporary maintenance, governed by Domestic Relations Law Section 236(B)(5-a), is paid during the pendency of the divorce action. It begins after the divorce is filed and ends when the divorce is granted. The purpose of temporary maintenance is to maintain the status quo and prevent the lower-earning spouse from being forced into a desperate settlement by financial pressure during the divorce. Temporary maintenance is calculated based on the parties' income at the time of the application.
Post-divorce maintenance, governed by Domestic Relations Law Section 236(B)(6), is paid after the divorce judgment is entered. The duration of post-divorce maintenance is calibrated to the length of the marriage and the parties' circumstances. Post-divorce maintenance is the more economically significant of the two for most parties because it can extend for many years, in some cases lifetime, depending on the marriage and the post-divorce circumstances.
The two formulas are similar in structure but not identical. The temporary maintenance formula was designed to be conservative and short-term. The post-divorce formula was designed to provide enough support for the recipient to transition to economic self-sufficiency where realistic, or to provide ongoing support where transition is not realistic. Both formulas apply only up to a statutory income cap, with discretion above that cap.
How the Statutory Formula Works
The post-divorce maintenance formula begins with a calculation that depends on whether child support is also at issue. The statute prescribes two formulas. The first, used when the maintenance payor is also paying child support, takes 20 percent of the payor's income (up to the cap) and subtracts 25 percent of the payee's income. The second, used when child support is not at issue or the maintenance payor is not the child support payor, takes 30 percent of the payor's income and subtracts 20 percent of the payee's income. Whichever number results, it is compared to a separate cap calculated as 40 percent of the combined income minus the payee's income, and the lower of the two numbers becomes the presumptive guideline amount.
The temporary maintenance formula uses similar percentages but is applied with somewhat different mechanics during the pendency of the divorce. The result is generally similar in magnitude to the post-divorce calculation for the same income levels, but the exact computation differs and an attorney should run both numbers when negotiating settlement.
The income cap, periodically adjusted, is the limit beyond which the formula no longer applies presumptively. As of recent adjustments, the cap is approximately $228,000 of combined income. Income above the cap is subject to discretion, with courts considering the same statutory factors that drive deviation but without a presumption of any particular amount. High-income cases therefore involve a hybrid analysis: the formula applies up to the cap, and judicial discretion governs above it.
Income for maintenance purposes is broadly defined and includes wages, business income, investment income, retirement distributions, and many other sources. Imputed income may be added where a payor is voluntarily underemployed or has unreported income. The specific computation can be complex, particularly for business owners and self-employed payors, and is the subject of significant negotiation in many cases.
Duration of Post-Divorce Maintenance
The statutory formula provides a presumptive number for the maintenance amount but does not by itself determine duration. Duration is set by an advisory schedule that ties the length of maintenance to the length of the marriage. The advisory ranges are guidelines, not binding limits, but they anchor most settlements and judgments.
Marriages of 0 to 15 Years
For marriages of up to 15 years, the advisory range is 15 to 30 percent of the length of the marriage. A 10-year marriage produces an advisory range of approximately 1.5 to 3 years. The duration accommodates the recipient's transition to economic self-sufficiency where realistic, with the assumption that a relatively short marriage produces a relatively short post-divorce financial dependency.
Marriages of 15 to 20 Years
For marriages of 15 to 20 years, the advisory range is 30 to 40 percent of the length of the marriage. A 17-year marriage produces an advisory range of approximately 5 to 7 years. The expanded duration reflects the longer career disruption typical of medium-length marriages where one spouse may have stepped back from the workforce.
Marriages of More Than 20 Years
For marriages of more than 20 years, the advisory range is 35 to 50 percent of the length of the marriage. A 25-year marriage produces an advisory range of approximately 9 to 12 years. For very long marriages, courts can and sometimes do award lifetime maintenance, particularly where one spouse is past the age of practical workforce reentry and where the marital lifestyle was supported by the higher earner's income for decades.
Courts can deviate from the advisory ranges based on the same statutory factors that drive deviation from the formula amount. Deviation downward is common where the recipient has substantial separate property or earning capacity. Deviation upward is less common but does occur, particularly for long marriages with health issues or other factors that make the recipient's transition difficult.
Factors That Drive Deviation from the Formula
Both the formula amount and the advisory duration are subject to deviation when the court finds that the presumptive result would be unjust or inappropriate. Domestic Relations Law Section 236(B) lists statutory factors that the court considers in deciding whether and how to deviate. The factors include the following.
- Age and health of the parties. Age, particularly proximity to retirement, and any health issues that affect earning capacity.
- Earning capacity. Each party's present and future earning capacity, taking into account education, training, and time away from the workforce.
- Need to incur education or training expenses. Where the recipient needs to re-train or complete education to become self-supporting, the cost and time required.
- Wasteful dissipation of marital property. Spending of marital assets in contemplation of divorce that reduces the recipient's share of the marital estate.
- Acts that bar a party's career or career potential. Domestic violence, harassment, or other acts that have impaired the recipient's career.
- Tax consequences. Although federal tax treatment changed in 2019 (see below), state tax treatment can still affect the analysis.
- Standard of living during the marriage. The standard the parties enjoyed during the marriage, which informs what is reasonable post-divorce.
- Reduced or lost lifetime earning capacity. Where one party gave up career opportunities to support the other or to raise children.
- Care for children, parents, or others. Ongoing caregiving responsibilities that limit the recipient's earning capacity.
- Contributions and services as a spouse, parent, wage earner, and homemaker. A broad recognition of contributions during the marriage.
- Other factors the court finds just and proper. A catch-all that gives courts flexibility to consider factors specific to the case.
Each factor that supports a particular adjustment should be documented in the maintenance analysis and the court's findings. Bare assertions are not enough. The party seeking deviation has the burden of supporting it with evidence. In practice, this means the maintenance negotiation involves substantial discovery on income, assets, work history, health, and any other relevant facts.
High-Income and Self-Employed Cases
Maintenance in high-income cases follows a hybrid framework. The formula applies up to the statutory income cap, currently around $228,000 of combined income. Above the cap, courts exercise discretion guided by the statutory factors, with no presumption of any particular amount or percentage. The result is that two cases with the same actual income can produce very different maintenance outcomes depending on how the discretionary portion is analyzed.
Self-employed and business-owner cases present additional complexity because income for maintenance purposes is not the same as W-2 wages. The court can look at the business's gross revenue, the owner's actual draw, retained earnings, perks and personal expenses paid by the business, and depreciation that does not reflect actual cash outflow. Forensic accounting is often required to develop a defensible income figure. Both sides have interests in this analysis: the higher earner wants to keep imputed income low, and the recipient wants to capture all income that is genuinely available to support the household.
For business owners, the analysis intersects with equitable distribution. The business itself is an asset to be valued and distributed, and the income from the business is the basis for maintenance. Allocating between asset value (one-time payment in property division) and income stream (ongoing maintenance) involves real economic and legal trade-offs. A common structure has the business owner retain the business but pay a buyout to the spouse over time, with maintenance set at a level that reflects the post-buyout income.
Equitable distribution and maintenance therefore have to be negotiated together, not separately. Our guide to equitable distribution in New York divorces covers the property division side, which integrates closely with the maintenance analysis.
Tax Treatment of Maintenance
The federal tax treatment of maintenance changed dramatically with the Tax Cuts and Jobs Act of 2017. For divorces finalized on or after January 1, 2019, maintenance payments are not deductible by the payor and not includible in income by the payee. This is a complete reversal of the prior rule, which had been in place for decades, and it changed the economics of maintenance negotiations in significant ways.
Under the prior rule, the payor could deduct maintenance, which meant the after-tax cost was substantially less than the gross payment. The payee was taxed on receipt, which meant the amount actually available for spending was less than the gross payment. Under the new rule, the payor pays maintenance with after-tax dollars, and the payee receives the payment tax-free. The change generally reduces the total amount the payor is willing to pay, because the after-tax cost has increased, and increases the value of any given payment to the payee.
New York State tax treatment for state purposes can differ from federal treatment. Practitioners should confirm the current state treatment with their tax advisor before structuring a settlement that assumes state-level deductibility or non-inclusion.
For divorces finalized before 2019, the prior federal rule continues to apply under a grandfathering provision. Modifications to those agreements after 2018 can preserve grandfathering or trigger the new rule depending on how the modification is drafted. Practitioners modifying older agreements should analyze the tax consequences of any modification before agreeing to changes.
Modification and Termination of Post-Divorce Maintenance
Maintenance awards are not necessarily permanent in their original form. New York law permits modification under specific circumstances, and termination upon defined events.
Modification of post-divorce maintenance is permitted upon a showing of substantial change of circumstances. The standard substantial change cases include involuntary loss of employment by the payor, significant decrease in payor income from causes outside the payor's control, retirement at customary retirement age (with some courts treating this as an automatic basis for modification and others requiring case-by-case analysis), substantial increase in the recipient's income or assets that affect the need for support, and other major life changes that affect either party's financial circumstances.
What does not generally support modification is the recipient's failure to find work where the recipient could have done so, the payor's voluntary career change to a lower-paying field, or routine fluctuations in income that do not represent a fundamental change. The party seeking modification has the burden of showing the change is substantial, involuntary or otherwise outside that party's control, and not contemplated by the original award.
Termination occurs by operation of law upon several events. The recipient's death terminates maintenance immediately. The payor's death terminates maintenance unless the divorce judgment requires the payor to maintain life insurance for the recipient's benefit, which is a common provision. The recipient's remarriage terminates maintenance unless the parties have specifically agreed otherwise in their settlement, which is unusual. Cohabitation by the recipient on a marriage-like basis can be grounds for termination under some circumstances, though the cohabitation analysis is fact-intensive and contested.
Negotiation and Drafting Considerations
Most divorces in New York settle rather than going to trial, and most maintenance issues are therefore resolved by agreement rather than by judicial determination. The settlement document, typically a settlement agreement that is incorporated into the divorce judgment, should address maintenance with specificity to avoid future disputes.
Key drafting points include the precise amount and duration, how income is calculated for any future modification analysis, how the maintenance is structured (monthly, quarterly, or other), tax treatment for state purposes, life insurance to secure the obligation, escalation or de-escalation tied to defined events, and the modification standard the parties want to apply (the statutory standard or a more or less restrictive contractual standard).
Some agreements include opt-out provisions making the maintenance non-modifiable in either direction. New York permits non-modifiable agreements but with specific requirements, including an explicit waiver of the statutory modification right. Non-modifiable agreements provide certainty but eliminate the safety valve that would otherwise be available if circumstances change dramatically.
Settlement agreements should also coordinate with child support if both are involved. Maintenance and child support interact in the formula and can be structured together to optimize tax treatment, predictability, and economic outcome for both spouses. For broader context on the divorce process from filing to judgment, our divorce process guide walks through every stage.
How Agarunov Law Firm Helps with Maintenance
At Agarunov Law Firm we represent clients on both sides of maintenance issues in New York divorces. Our work includes financial analysis and income calculation, statutory formula computation including high-income discretionary analysis, deviation analysis based on the statutory factors, settlement negotiation, drafting of maintenance provisions in settlement agreements, and post-divorce modification proceedings when circumstances change. We coordinate with forensic accountants, business valuation firms, and tax advisors as the matter requires. Our office at 30 Broad Street in Manhattan's Financial District serves clients across all five boroughs and the surrounding region. For broader practice information, our New York family law practice page describes the full scope of representation we offer. For coverage of the full divorce process, our complete NYC divorce guide walks through every stage from filing to judgment.
Frequently Asked Questions
How is spousal maintenance calculated in New York?
New York uses a statutory formula. When the maintenance payor is also paying child support, the formula is 20 percent of the payor's income minus 25 percent of the payee's income. When child support is not at issue, the formula is 30 percent of the payor's income minus 20 percent of the payee's income. The result is compared to 40 percent of combined income minus the payee's income, and the lower number is the presumptive guideline. The formula applies up to a statutory income cap of approximately 228,000 dollars of combined income. Income above the cap is subject to judicial discretion based on statutory factors.
How long does maintenance last?
Duration is set by an advisory schedule tied to the length of the marriage. For marriages up to 15 years, the advisory range is 15 to 30 percent of the marriage length. For 15 to 20 years, it is 30 to 40 percent. For more than 20 years, it is 35 to 50 percent. The advisory ranges are guidelines and courts can deviate based on statutory factors. For very long marriages, particularly where the recipient is past practical workforce reentry, lifetime maintenance is possible. Maintenance also terminates by operation of law on the recipient's remarriage, the payor's death (subject to life insurance provisions), or the recipient's death.
What is temporary maintenance versus post-divorce maintenance?
Temporary maintenance is paid during the divorce proceeding, from the time of filing until the divorce is granted. It is governed by Domestic Relations Law Section 236(B)(5-a) and uses its own statutory formula. Post-divorce maintenance is paid after the divorce judgment is entered and is governed by Section 236(B)(6) with a separate formula and an advisory duration schedule. The two are calculated separately, and a party can be paying one and not the other depending on the stage of the case. In practice, an attorney should run both formulas when analyzing a case to understand the full picture.
Are maintenance payments tax-deductible?
For federal tax purposes, no. Under the Tax Cuts and Jobs Act of 2017, maintenance payments under divorces finalized on or after January 1, 2019 are not deductible by the payor and not includible in income by the payee. This is a reversal of the prior rule, which had been in place for decades. New York State tax treatment for state purposes can differ and should be confirmed with a tax advisor. Divorces finalized before 2019 generally remain under the prior federal rule. Modifications to older agreements can affect tax treatment depending on how the modification is structured.
Can I modify my maintenance award if my circumstances change?
Yes, in most cases, on a showing of substantial change of circumstances. The standard substantial change cases include involuntary loss of employment, significant decrease in payor income from causes outside the payor's control, retirement at customary retirement age, substantial increase in the recipient's income or assets, and major life changes affecting either party. The party seeking modification has the burden of showing the change is substantial, outside that party's control, and not contemplated by the original award. Some settlement agreements explicitly waive modification rights, in which case the agreement controls and modification is not available regardless of changes.
Does maintenance end if my ex remarries?
Yes. The recipient's remarriage terminates maintenance by operation of law unless the parties have specifically agreed otherwise in their settlement, which is unusual. The termination is automatic and does not require a court order. The recipient's cohabitation with a new partner on a marriage-like basis can also be grounds for termination, but the cohabitation analysis is fact-intensive and contested in many cases. Courts look at the financial integration of the new household, holding out as a couple, and the duration and nature of the relationship.
How does maintenance work in high-income cases?
The statutory formula applies up to a combined income cap of approximately 228,000 dollars. Above that cap, courts exercise discretion guided by the statutory factors, with no presumption of any particular amount. High-income cases therefore involve a hybrid analysis: the formula applies up to the cap, and judicial discretion governs above it. Two cases with the same actual income can produce different outcomes depending on how the discretionary portion is analyzed. For business owners and self-employed payors, the income calculation itself is often disputed and may require forensic accounting, which adds another layer of complexity.
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