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Equitable Distribution and Maintenance

By: Daniel E. Clement, Esq.

What is maintenance and how does it differ from alimony?

In New York, alimony is called maintenance. Maintenance can be awarded for an indefinite or definite period of time. In considering an award of maintenance, the Court must consider the standard of living of the parties that was established during marriage, the circumstances of the case and of the parties, whether the party who is getting the award lacks sufficient property and income to provide for his/her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the otherís reasonable needs.

How is maintenance calculated?

The following factors are considered by the Court in calculating the duration and amount of maintenance:

  1. the income and property of the respective parties including marital property distributed;

  2. the duration of the marriage and the age and health of both parties;

  3. the present and future earning capacity of both parties;

  4. the ability of the party seeking maintenance to become self supporting and, if applicable, the period of time and training necessary therefor;

  5. reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;

  6. the presence of children of the marriage in the respective homes of the parties;

  7. the tax consequences to each party;

  8. contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

  9. the wasteful dissipation of marital property by either spouse;

  10. any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and

  11. any other factor which the Court shall expressly find to be just and proper.

How will the marital property be distributed?

In New York, upon dissolution of a marriage, the Court must distribute "equitably" all "marital property" regardless of the manner in which title is held, considering the following factors:

  1. the income and property of each party at the time of marriage and at the time of commencement of action;

  2. the duration of marriage and the age and health of both parties;

  3. the need of custodial parent to occupy or own marital residence or to use or own household effects;

  4. loss of inheritance rights and pension rights up

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