Update on Duration of Maintenance

When New York Legislature passed the “no-fault” divorce statute in 2010, it created a formula for calculating temporary spousal maintenance under DRL §236[B]5-a. However, it did not set forth a formula or specific rules for establishing spousal maintenance post-divorce in terms of both amount and duration.

Thus, family law attorneys have to rely on court decisions as a basis for estimating likely spousal maintenance awards. In Monroe County, in a typical maintenance case, it is likely that a spouse who is entitled to receive maintenance is likely to receive spousal maintenance with length of one third duration of the marriage.  This rule of thumb has been utilized by a number trial court judges and lawyers. However, not every trial judge subscribes to it, and each judge’s views of maintenance are likely to impact such awards.

In a recent case, Zufall v. Zufall, 2013 NY Slip Op 06142 (4th Dept. 2013),  The Appellate Division, Fourth Department, has confirmed this. In Zufall, the parties were married for 21 years and have five children, one of whom was emancipated. During the marriage, plaintiff was primarily a homemaker, raising the parties’ children while defendant worked as a correction officer. Shortly before divorce action was commenced, defendant retired at the age of 50 after 25 years of service. Plaintiff has been determined by the Social Security Administration to be 50% disabled, and she receives partial Social Security disability benefits of $622 per month plus workers’ compensation benefits of $400 per month. She also works 20 hours per week as a bartender, earning $5 per hour plus tips.

The court stated that after considering the statutory factors enumerated in Domestic Relations Law § 236 (B) (6) (a) — particularly, the length of the marriage; the income and property of the parties, including the marital property distributed by the court; and the present and future earning capacity of the parties,  “[w]ith respect to the duration of maintenance, however, we agree with defendant that the court’s award is excessive insofar as the court ordered defendant to pay maintenance until plaintiff turns 62, i.e., for approximately 18 years. We conclude that a term of seven years from the date of commencement of the action “should afford the plaintiff a sufficient opportunity to become self-supporting”.”

Given the circumstances, the trial level award of 18 years of maintenance was probably too long.  As a result, it appears that the Appellate Division, Fourth Department, has adopted a bright line rule of awarding spousal maintenance for one third of the duration of the marriage.

It will be interesting to see if this standard will survive any changes to the Domestic Relations Law that may come as a result of the Law Revision Commission’s report issued in May.