Long Term Separation, Maintenance and Problems of Proof

I have previously discussed how the courts determine maintenance amounts in divorce cases. One of the critical factors in court’s evaluation of whether maintenance is appropriate or necessary, is the parties’ standard of living. However, there are many situations where the parties have been separated for a significant period of time. Under those circumstances, in Dowd v. Dowd, 58 A.D.3d 1057 (3rd Dept. 2009), the Appellate Division, Third Department, held that where the parties were separated for a long period of time, their pre-separation standard of living should not be considered.

In Dowd, the parties were married in 1976, were separated in 1999 and were divorced in 2007. According to the court, the standard of living during marriage was not a consideration given parties’ long separation. During the separation, the wife, who was 49, was supported, in part, by her live-in boyfriend, and had sporadic employment history involved low-wage jobs. Neither party graduated from high school. By time of trial, the husband, who was 50, was earning approximately $60,000 per year, working for manufacturer of heavy equipment. The wife also received distributive award of $100,000.

Supreme Court initially awarded defendant wife $500 maintenance per month until she is eligible for Social Security retirement benefits at age 62 in 2019 and, thereafter, reduced it to $250 per month, until she is eligible for health care benefits through Medicare at age 65 in 2022. The Appellate Division reduced the duration of the maintenance award to 5 years. It held that the standard of living during marriage was not a consideration given the parties’ long separation. Further, since the purpose of maintenance is to provide financial support for recipient spouse, while spouse gains skills and employment necessary to become self-sufficient, that particular factor was not applicable in this situation since the wife should be able to support herself. The court also noted that there was no competent medical proof with respect to the health problems claimed by the wife.

It should be noted that the Appellate Division split 3 to 2 in this case. The vigorous dissent stated that the lower court did not abuse its discretion in its award of maintenance to the wife, arguing that she was suffering from several medical conditions, impairing her ability to work and making it unlikely that she would become self -supporting.

It is worth noting that Dowd may have been decided the other way, if there was admissible proof that the wife was suffering from a medical condition, or conditions, that would prevent her from being gainfully employed. Such admissible proof inevitably involves testimony of a medical professional. Any divorce lawyer who is making an argument that his or her client is unable to work for medical reasons must be ready present testimony of a medical professional. Similarly, if a claim for rehabilitative maintenance is being presented to the court, an attorney must be prepared to present testimony of a vocational expert. While experts can charge significant fees, the case may turn on such testimony.

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