With the rise of “gray divorce” comes an increasing number of cases in which women aged 50 and above, who have not worked outside the home while raising their children, are finding it difficult to return to work following divorce, despite being highly educated and qualified. Married for 20-plus years, they learn their alimony will only last a short term, barely long enough for them to retrain, re-educate and ready themselves for the next chapter of their lives. While some are fortunate to have enough assets and investments on which they can live, the vast majority must rediscover the talents they packaged and put away to become the face of the family while emotionally supporting their spouse and raising their children. Having survived the trauma of divorce, they are thrust into a challenging and unfamiliar situation with little direction and support from a court system that doesn’t adequately account for this scenario.
In New York, spousal maintenance is awarded to the less monied spouse according to a formula, which presently arbitrarily caps the income on which it is calculated at $192,000. For those families who have lived on annual income in excess of $192,000, the court examines a series of factors and has the discretion to award maintenance based on some portion of the excess. New York courts, however, have yet to match a spouse’s actual income dollar-for-dollar in assessing maintenance. For example, a spouse earning income in excess of $1 million will not pay maintenance based on that income, but rather, will likely pay maintenance on income totaling approximately $500,000-600,000, depending on the applicable series of factors. Importantly, the guidelines for payment of maintenance were established when maintenance payments were taxable to the recipient. Beginning in 2019, maintenance payable to a spouse is no longer deductible from the payor’s income for tax purposes, nor taxable by the recipient. Some courts, therefore, are reducing the amount mandated by statute to account for the fact that the payments are no longer deductible.
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