20 Factors New York Courts Consider When Determining Spousal Support Calculation


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After New York courts have determined that spousal support should be paid, they consider the following 20 factors in determining how much support payments should be:

Income and Property

The court considers the income and property of each spouse, including the distribution of property pursuant to the divorce decree.

Duration of the Marriage

The court considers how long the spouses have been married. When the spouses have been married for a longer period, the spousal support award may mean a longer or higher award amount.

Age and Health of the Spouses

The court also considers the age of both parties to determine the expected life span and earning ability of the spouses. Additionally, the court considers the relative health of the spouses. If the recipient spouse is inflicted with poor health or is of advanced age, the award may be affected.

Present and Future Earning Capacity

The court also considers the current and future earning capacity of each spouse. The court can look at the education, work history, job skills and resume of both parties to determine how much income they may be capable of earning.

Lost Earning Capacity Due to Contributions

The court can also consider if the earning capacity of the spouse seeking spousal maintenance was reduced or lost because of sacrifices the spouse made such as not pursuing education or delaying education, employment or job opportunities during the marriage because he or she was supporting the other spouse’s career or to raise the couple’s children. The court can consider the equivalent amount of income the spouse sacrificed in order to otherwise support the household.

Limitations on Earning Capacity

The court may also consider acts that have inhibited a spouse’s earning capacity or achieve meaningful employment, such as abuse in the relationship.

Ability of the Recipient Spouse to Become Self-Supporting

The courts can consider the capacity of the spouse seeking maintenance income to become self-supporting. The court may also consider how long it will take for the spouse to become self-supporting, such as if the spouse needs to acquire a college degree or job training.

Need to Incur Education or Training Expenses

The courts can consider if the recipient spouse will incur education or training expenses to become self-supporting. The court may determine that the spousal maintenance award be limited to just the time it takes the recipient spouse to acquire the education or job skills he or she needs.

Inability to Obtain Meaningful Employment

The courts also take into consideration the inability of a spouse to obtain meaningful employment because of his or her age or from having a prolonged absence from the workforce.

Nonmonetary Contributions to the Household

Just as the courts consider the economic contributions that each spouse made to the marriage, they also consider the nonmonetary contributions that the recipient spouse made to the marriage. This includes contributions made in the capacity as a spouse, parent, homemaker and wage earner as well as contributions to the career or possible career potential of the other spouse.

Residence of the Children

If there are children involved in the divorce, the court may consider whether the children will be living with the recipient spouse and whether this factor will impact the spouse’s ability to earn an income.

Extraordinary Expenses

The courts can also consider whether either spouse incurs additional expenses, such as paying for the tuition, daycare expenses or medical treatment for themselves or the children.

Caregiving Obligations

The courts consider the obligations of the recipient spouse to provide caregiving obligations to other people, such as other family members who are not children. For example, they may be taking care of an elderly parent or disabled adult children. If this caregiving inhibits the spouse’s ability to earn a decent living, the court can consider this factor.

Premarital or Pre-Divorce Agreement

The court can also consider whether there is a valid premarital agreement or pre-divorce agreement pertaining to spousal support and the provisions included in such agreement.

Distribution of Marital Property

The courts also consider the property that each spouse received in the divorce and the value of this property.

Tax Consequences

Different distributions of property may have various tax consequences, which the court can consider.

Wasteful Dissipation of Marital Assets

If one of the spouses wastefully spent marital assets, the court can consider this factor when determining the amount of spousal support.

Transfer Made in Contemplation of Divorce

If a spouse sells a marital asset for less than fair market value or gives it away, the court can consider this.

Loss of Health Insurance

The court can consider if a spouse is going to lose health insurance as part of the divorce.

Any Other Factor

The court can consider any other factor that is just and proper.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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