Overpayment of Pendente Lite Maintenance and Equitable Distribution

I have previously written that the Supreme Court has wide latitude in fashioning pendente lite (interim) maintenance awards while the divorce action is pending.  But what happens if the trial court ultimately decides that the pendente lite maintenance award was excessive?  The Court of Appeals recently addressed this issues in Johnson v. Chapin, 2009N.Y.  Slip. Op. 03630 (2009).

In Johnson, the Court of Appeals held that when a pendente lite award of maintenance is found at trial to be excessive or inequitable, the court may make an appropriate adjustment in the equitable distribution award.  Thus, the Court of Appeals held that the trial court did not abuse its discretion in giving husband a credit representing the amount of the pendente lite maintenance he paid that exceeded what he was required to pay under the final maintenance award.  In determining the temporary maintenance award, Supreme Court imputed an average salary in excess of $2 million to husband. However, at trial, it was established that his income was significantly lower. Given the disparity in the maintenance amounts, under the circumstances of this case, it was appropriate for the husband to receive a credit for excessive maintenance paid.

This decision is significant since it reaffirms the principle that pendente lite awards are temporary and are subject to adjustment.  An experienced divorce lawyer will not rest after obtaining a favorable pendente lite relief for the client, but will continue to work to make sure that the any pendente lite maintenance, or other interim award, is preserved as a part of a final decision.

Basics of Bankruptcy Discharge and Domestic Support Obligations

On occasion, a divorce may result in one or both of the parties filing for bankruptcy, often without an adequate understanding of the limited relief available in the bankruptcy court. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) directly addressed issues related to the dischargeability of marital debt and support obligations, as well as to the effect of the automatic stay on collection and enforcement proceedings out of divorce and family law litigation.

Under bankruptcy law, a “domestic support obligation” is any debt incurred before or after a bankruptcy filing that is owed to or recoverable by a spouse, former spouse, child or governmental unit; in the nature of alimony, maintenance or support; and established pursuant to the terms of a divorce decree, separation agreement, property settlement agreement, court order or administrative determination.

In Chapter 7 bankruptcy, essentially all marital and domestic relations obligations are not dischargeable, regardless of whether they are support in nature, property divisions or “hold harmless” agreements, provided they were incurred by the debtor in the course of a matrimonial proceeding or a divorce action which resulted in a separation agreement, divorce decree, court order or administrative determination.

A debtor’s obligation to pay marital debts directly to a third party ( ie., pay the mortgage on former marital residence) and to hold the former spouse harmless on said debts is also deemed to be non-dischargeable if the obligation has the effect of providing support to the former spouse. A debtor’s duty to pay the following expenses are usually deemed to be in the nature of support and not dischargeable: educational expenses of a minor child; medical insurance coverage for a minor child; and life insurance, with the minor children as beneficiaries.

Attorney’s fees owed by debtor to his own lawyer are clearly dischargeable in bankruptcy, but as a general rule, attorney’s fees owed by debtor to a former spouse’s attorney are not dischargeable, if the underlying legal proceeding resulted in the entry of an order or judgment directing payment of maintenance or spousal support to the former spouse.

The division of a debtor’s pension benefits during the divorce action is usually accomplished by entering a Qualified Domestic Relations Order (“QDRO”). Since division of a pension is considered to be a transfer by debtor of a present interest in his pension, and as such, it is not a debt that can be discharged in bankruptcy.

In Chapter 13 bankruptcy, past due domestic support obligations owed by a debtor are not dischargeable, unless they are paid in full over the life of the Chapter 13 plan. However, if a debt created by a separation agreement or judgment of divorce is not in the nature of support, it sometimes can be discharged in Chapter 13 without being paid in full.

For a Chapter 13 Plan to be confirmed by the Bankruptcy Court, it must: pay in full to the former spouse all domestic support obligations owed by debtor at the time of the bankruptcy filing, and the debtor must be current on all domestic support obligations incurred after the bankruptcy filing.

A Chapter 13 Plan, even if confirmed by the bankruptcy court, is subject to dismissal if the debtor fails to pay any post-petition or post-confirmation domestic support obligations, and a Chapter 13 discharge will not be entered by the bankruptcy court unless and until a debtor certifies that all domestic support obligations have been paid and that the debtor is current on such obligations.

The automatic stay created by a bankruptcy filing bars the commencement or continuation of most legal proceedings, but it has no effect on a proceeding to establish paternity; to establish or modify a child support order, determine child custody or visitation issues, or dissolve a marriage, except to the extent that such proceeding may seek to determine a division of marital property in which the bankruptcy estate also has an interest. In those situations, the divorce can be granted without first obtaining relief from the automatic stay, but the marital property cannot be divided without obtaining such relief.

The automatic stay also does not prevent the post-petition collection of domestic support obligations such as alimony or child support from any property belonging to the debtor, providing that the bankruptcy estate does not also have an interest in the same property; from automatic wage deduction orders created by a statute or judicial or administrative order; from the interception of debtor’s federal or state income tax refunds, or
from the withholding, suspension or restriction of a debtor’s driver’s license or professional or occupational license. Therefore, Bankruptcy Court does not offer much protection for someone seeking to avoid the domestic support obligations.

The above rules will apply to the proceedings in New York State courts. In Ross v. Sperow, 57 A.D.3d 1255 (3rd Dept. 2008), the Appellate Division had to address a situation where one of the parties was seeking to enforce a counsel fee award after the other party filed for bankruptcy. In Ross, multiple violation petitions had been filed by the parties over the course of several years. In August 2006, Family Court upheld mother’s motion for counsel fees and directed father to pay $5,000 of the mother’s counsel fees. Father filed for a Chapter 7 bankruptcy thereafter, and listed the award of counsel fees as an unsecured debt. Father’s bankruptcy was discharged in January 2007. Mother brought a violation petition which alleged that father failed to pay the counsel fees. Father moved to dismiss petition on ground that he discharged counsel fee award in bankruptcy. The Appellate Division stated that state and federal courts have concurrent jurisdiction over issue of dischargabilityof a particular debt and held that domestic support obligations in the nature of support are exempt from discharge in bankruptcy. While father contended that counsel fees incurred were for custody and visitation proceeding, the record reveals that mother’s initial petition commencing the proceeding raised issues of financial need and hardship. According to the Appellate Division, term “in the nature of support” is broadly interpreted in the context of discharge of debt obligations in bankruptcy and held that the award of counsel fees was in part in the nature of support, and as such, exempt from discharge in bankruptcy.

Downward Modification of Maintenance

In these uncertain economic times, someone obligated to pay maintenance may lose a job, experience significant investment losses, or suffer other adverse financial events. Can something be done about maintenance under those circumstances? The answer, as I have often written, depends on the specific facts.

A party seeking the reduction of a maintenance obligation bears the burden of establishing a substantial change of circumstances. Klapper v. Klapper, 204 A.D.2d 518 (2d Dept. 1994). In Klapper, the Second Department held that, in determining whether there was a substantial change in circumstances sufficient to warrant downward modification, the change is to be measured by a comparison between the payor’s financial circumstances at the time of the motion for downward modification and at the time of divorce or, as the case may be, the time that the order of which modification is sought was made.” Id. at 519. The Appellate Division, Fourth Department utilized the same standard of review in Able v. Able, 245 A.D.2d 1026 (4th Dept. 1997).

In Simmons v. Simmons, 26 A.D.3d 883 (4th Dept. 2006), defendant lost his job and subsequently moved for a downward modification of his maintenance obligation. The Appellate Division held that since despite defendant’ diligent job search, he had little prospect of finding employment at a salary comparable to his salary at the time of the divorce, the downward modification was warranted.

The party seeking to modify the maintenance provisions of a judgment of divorce in which the terms of a stipulation of settlement have been incorporated but not merged, must demonstrate that the continued enforcement of the party’s maintenance obligations would create an “extreme hardship”. Beard v. Beard, 300 A.D.2d 268 (2d Dept. 2002) (the proper amount of support payable is determined not by a parent’s current economic situation, but by a parent’s assets and earning powers). See also, Domestic Relations Law § 236(B)(9)(b).

A reduction in the payor’s income will not result in decreased maintenance where it is the result of a voluntary action, such as self-imposed retirement. Fendsack v. Fendsack, 290 A.D.2d 682 (3d Dept. 2002); DiNovo v. Robinson, 250 A.D.2D 898 (3d Dept. 1998). In Dallin v. Dallin, 250 A.D.2d 847 (2d Dept. 1998), the Second Department held that Family Court properly rejected the father’s claims that his financial situation, prolonged unemployment, and illnesses warranted a drastic reduction of his maintenance and child support obligations. The father had failed to produce any competent evidence to support his claim that he used his best efforts to obtain employment commensurate with his qualifications and experience or that his medical conditions rendered him unemployable.

In Lenigan v. Lenigan, 146 Misc.2d 627 (Sup.Ct., Albany County 1990), the defendant sought to reduce his maintenance and child support obligations. The defendant claimed that, in the prior three months, his compensation as a stock broker had been reduced. It is well settled that the party seeking to obtain a reduction of support bears the burden of establishing a substantial change of circumstances. Id. A drastic change in income can constitute a substantial change of circumstances. Id. In Lenigan, the defendant was a stockbroker, and by the very nature of his business, his income would fluctuate throughout the year. The Supreme Court held that, adopting the defendant’s theory of allowing a modification based upon temporary fluctuations in income would lead to a ludicrous result. Although the defendant asserted a three-month lull in business, there was nothing to establish that sales would not pick up in the following months.

In conclusion, an experienced divorce lawyer faced with a significant change in client’s economic situation, must carefully construct an argument for the court that the change was not created by his/her client, that the change is significant, that it is likely to last for a some time, and that the client has exhausted all other alternatives.
In Watrous v. Watrous, 292 A.D.2d 691 (3d Dept. 2002), at age 55, the plaintiff voluntarily retired from State employment and, shortly thereafter, moved to terminate or, in the alternative, reduce his maintenance obligation. The plaintiff asserted as a substantial change in circumstances that he took early retirement due to his poor health and would be experiencing a significant reduction in income. A hearing was held and, at the close of plaintiff’s proof, Supreme Court granted defendant’s motion to dismiss, finding that plaintiff had failed to establish a sufficient change in circumstances. The Third Department affirmed on appeal, stating that a maintenance obligation established by a judgment of divorce will not be modified absent clear and convincing proof of a substantial change in circumstances. The record revealed that, at the time of the divorce, Supreme Court was aware of both the medical restrictions on plaintiff’s employment and the possibility that his poor health might cause him to retire early. Accordingly the circumstances existing at the time of the plaintiff’s application for downward modification were foreseeable, and anticipated at the time of the parties’ divorce. Furthermore, the record was devoid of evidence that the reduction in the plaintiff’s income would substantially diminish his standard of living or his ability to satisfy his maintenance obligation. The Third Department therefore concluded that the plaintiff failed to establish a substantial change in circumstances.

Basics of Maintenance

Maintenance is set forth in the Equitable Distribution Law, DRL, Section 236, Part B. Prior to the enactment of DRL Section 236 was enacted, the statute used the term “alimony”.

The statutory factors, pursuant to Domestic Relations Law Section 236(B)(6), relative to the consideration of maintenance are as follows:

(1) the income and property of the respective parties including marital property distributed pursuant to Domestic Relations Law Section 236(B);
(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 therefore;
(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;
(11) any other factor which the parties or the Court expressly find just and proper.

In resolving the issue of the appropriate amount of spousal maintenance, the parties in settlement, or a court in trial, must have regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs, and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties.

The court is charged with looking at all sources of income and property that the parties are able to receive in equitable distribution. Income derived from separate property may also be considered by the court. Maintenance (similarly to child support) are determined on the basis of earning capacity, not necessarily earnings! It is, therefore, well within the purview of the court to impute income to one or both parties in determining the basis for the award of maintenance.

The court is required to look at the present and future earning capacity of both parties so be sure to address for both not only their current situations, but respective abilities to be self-supporting in the future, ability to continue to earn in the future and for what period of time, skills and training, and future prospects. The ability to be self-supporting is very fact sensitive and requires careful analysis. Do not just think of Factor #4 as relating to a spouse in a longterm marriage who has not worked in over 20 years, is in mid- to late-50’s, etc., but apply facts to a spouse with young children, still nursing, etc. Self-sufficiency depends upon the ability to achieve a lifestyle equal to that enjoyed during the marriage.

It is the responsibilities of the attorneys for the parties to make the court aware of the tax consequences to a payor spouse and payee spouse. Expert
testimony will be needed to provide the court with the tax impact upon each party of various maintenance scenarios, to allow the court to determine which amount most meets the demonstrated needs of the payee and the ability of the payor to make the payments.

Most often considered under the catch-all factor #11 is the issue of fault. While fault may not be considered in the equitable distribution of the marital estate unless it is egregious, there is no such standard applicable to fault as it relates to an award of maintenance. While marital fault does not preclude an award of maintenance, it is a relevant factor which can be considered. Maintenance can be directed by the court, or can be provided for in a “valid” agreement between the parties. An award of maintenance is ultimately in the discretion of the court. The overriding purpose of spousal maintenance is to enable the receiving spouse to achieve financial independence.

The reason for imposing a time limitation upon a maintenance award is usually to give the supported spouse a reasonable period of time in order to learn or update work skills and enter the work force with a view to being self-supporting. The court may award permanent maintenance. DRL Section 236(B)(9). Permanent, or non-durational, maintenance may be appropriate where one spouse’s energies during the marriage where primarily devoted to homemaking and childrearing to the detriment of being able to become self-sufficient and maintain the pre-divorce standard of living. The court cannot make an open-ended award in terms of the amount that is to be paid; there must be a set number.

On the other hand, durational maintenance is that which is required for a fixed period of time to allow the receiving spouse to become self-supporting and in recognition of the predivorce standard of living. Maintenance terminates upon the death of either party or upon the recipient’s valid or invalid marriage. DRL Section 236(B)(6)(c).

Maintenance is deductible by the payor spouse and is includable in the recipient spouse’s income. However, if a payment is not true maintenance, the IRS will not allow it as a deduction. A person’s marital status is determined, for tax purposes, as of the end of the calendar year. IRC Section 143(a)(1). Therefore, a person who weds on December 29th is considered married for the whole year and, conversely, a person whose divorce is finalized on December 29th cannot file as a married person. A divorce becomes final on the date the judgment is filed in the county clerk’s office. However, the parties can agree, or the court can order, that the maintenance payments are not taxable to the recipient and not an adjustment to the income of the payor. 26 USCA Section 71(b)(1)(B). The court must have a clear rationale for ordering the payments non-taxable.

Where maintenance and child support are both payable, the amount of maintenance must first be deducted before calculating child support. Family Court has jurisdiction to provide support to a spouse, rather than a former spouse.

“Cohabitation” and Interpretation of Separation Agreement’s Provisions Applicable to Maintenance

A typical separation agreement that provides for post-divorce maintenance will have a number of provisions describing circumstances under which such maintenance can be terminated. One of the more common clauses speaks of the spousal maintenance being terminated where the former spouse is cohabitating with another adult of opposite sex for a period of time. Most separation agreements do not define cohabitation, but the courts have held that in order for cohabitation to take place, there must be a sexual relationship, as well as a degree of economic partnership between the former spouse and the unrelated adult of the opposite sex. In Graev v. Graev, __ N.Y.3d __ (October 21, 2008) the Court of Appeals had to decide whether the term “cohabitation” as included in the parties’ separation agreement was unambiguous, and whether the prior standard utilized by the courts was still valid. In a 4-3 opinion, a divided Court of Appeals ruled yesterday that “cohabitation” is an ambiguous term whose definition for purposes of potential violations of separation and divorce agreements depends on what the parties understood it to mean when making their settlements. While all of the judges agreed that a couple need not share household expenses or function as a single economic unit to be cohabitating, the Court was divided over how to resolve the dispute between Linda and Lawrence Graev and the $11,000 in monthly maintenance fees he contends she forfeited by living with a boyfriend for at least 60 straight days in violation of their separation agreement. Since the Court of Appeals held that the term “cohabitation” as contained in the parties’ separation agreement was ambiguous, it remanded the case back to the trial court to hold a fact-finding hearing to determine what the parties’ understanding of this term was at the time the separation agreement was executed. As the Court of Appeals pointed in the footnote, “[t]he wisest rule, of course, is for parties in the future to make their intentions clear by careful drafting.”

Change in Health Condition and Maintenance

In order to obtain a reduction of maintenance, the party seeking the reduction bears the burden of establishing a substantial change of circumstances. Lipow v. Lipow, 110 A.D.2d 756 (2d Dep’t 1985); Patell v. Patell, 91 A.D.2d 1028 (2d Dep’t 1983); Hickland v. Hickland, 56 A.D.2d 978 (3d Dep’t 1977). Some courts have held that an unanticipated medical condition which befalls a party after a judgment of divorce was entered, may be a basis for modifying that party’s maintenance obligation. Bischoff v. Bischoff, 159 A.D.2d 404 (1st Dep’t 1990); Wantuch v. Wantuch, 56 A.D.2d 866 (2d Dep’t 1977).

In Praeger v. Praeger, 162 A.D.2d 671 (2d Dep’t 1990), a husband agreed to certain maintenance obligations with knowledge that he had a history of heart disease, heart surgeries and several heart attacks. Thereafter, he suffered a stroke which he claimed rendered him permanently disabled and unable to perform his profession. The husband pointed to that stroke as a basis for modifying his maintenance obligation. In light of his condition at the time of the divorce, the court refused even to grant a hearing, absent additional medical and financial evidence that a substantial change of circumstances had occurred.

If after the judgment of divorce is entered, the party paying maintenance develops a health condition that impairs his/her ability to pay maintenance, any application seeking modification of maintenance must be supported with admissible medical evidence and an evidentiary showing must be made that the health condition has impaired that party’s financial situation.

Duration and Amount of Maintenance

Domestic Relations Law §236(B)(6)(a) sets forth a number of factors which, in combination, allow the court to determine the appropriate duration and amount of maintenance. The following discussion of recent cases describes how the courts applied statutory criteria to various factual situations.
It is well settled that the amount and duration of maintenance are matters committed to the sound discretion of the trial court. Frost v. Frost, 49 A.D.3d 1150 (4th Dept. 2008); Booth v. Booth, 24 A.D.3d 1238 (4th Dept. 2005). Each case must be considered based on the unique facts and circumstances it presents. Xikis v. Xikis, 43 A.D.3d 1040 (2nd Dept. 2007), appeal denied, 10 N.Y.3d 704 (2008).
When fashioning a maintenance award, the trial court is required to take into account the parties’ pre-separation standard of living. Fitzpatrick v. Fitzpatrick, 43 A.D.3d 991 (2nd Dept. 2007). The court must also consider the reasonable needs of the recipient spouse, and the pre-separation standard of living in the context of the other factors set forth in Domestic Relations Law §236(B)(6)(a), and then, in its discretion, determine a fair and equitable maintenance award. Id.
In Booth v. Booth, 24 A.D.3d 1238 (4th Dept. 2005), the Fourth Department perceived no abuse of discretion in the award of maintenance to the plaintiff, where the record established that defendant had steady employment and received supplemental income from Air Force disability payments and rental properties. In addition, defendant received Social Security payments for each child based on plaintiff’s disability, and plaintiff had been ordered to pay child support to defendant. In comparison, plaintiff’s income consisted of Social Security disability payments and minimal wages from part-time employment at a fast-food restaurant. Although her income exceeded her expenses, plaintiff had health problems that affected the stability of her employment. The lower court’s award of maintenance to the plaintiff thus was upheld on appeal. Id.
In Pickard v. Pickard, 33 A.D.3d 202 (1st Dept. 2006), appeal dismissed, 7 N.Y.3d 897 (2006), lifetime maintenance of $3,500.00 per month was appropriately awarded to the plaintiff in view of the 23-year duration of the parties’ marriage, plaintiff’s role in raising and educating the parties’ children, plaintiff’s minimal job skills, plaintiff’s extended absence from the workforce, and the parties’ respective financial positions. Id.
Similarly, in Xikis v. Xikis, 43 A.D.3d 1040 (2nd Dept. 2007), appeal denied, 10 N.Y.3d 704 (2008), the parties lived together for 28 years and were married for over 18 years. The defendant was not employed during most of the marriage, had limited education and skills, and was 60 years old at the time of the judgment. In addition to the properties awarded to the defendant by the Supreme Court, in the exercise of discretion and upon consideration of all relevant factors, an award of $1,500 as monthly non-durational maintenance was deemed to be appropriate. Id.
In Fitzpatrick v. Fitzpatrick, 43 A.D.3d 991 (2nd Dept. 2007), the Supreme Court was found to have providently exercised its discretion in awarding maintenance to the plaintiff-wife in the sum of $3,000 per month until she reached the age of 65.
Likewise, in Nichols v. Nichols, 19 A.D.3d 775 (3rd Dept. 2005), Supreme Court did not abuse its discretion in fixing maintenance at $350 per week until the plaintiff turned 62, a period of six years. In rendering its decision, the court noted that the Defendant earned $96,910 annually, while the plaintiff received only $18,056 annually from a disability retirement pension and earnings from part-time employment. The court also considered the plaintiff’s age and poor health, the gross disparity between the parties’ incomes, and the unlikelihood of plaintiff becoming self-supporting. Id.
In Taylor v. Taylor, 300 A.D.2d 298 (2nd Dept. 2002), the defendant contended that the Supreme Court erred in continuing his maintenance obligation until the plaintiff-wife attained the age of 65 or until he retired, whichever occurred later. The parties were married for over 27 years when the action was commenced. The plaintiff had ceased working outside the home to raise the parties’ children, and the parties stipulated that her medical condition precluded gainful employment in the future. In contrast, the defendant was steadily employed during the marriage and had the potential to increase his future earnings. Given the disparity in the parties’ financial circumstances, the lower court was found to have providently exercised its discretion in directing the defendant to pay maintenance until the plaintiff became eligible for full Social Security benefits at the age of 65, or until the defendant retired, whichever occurred later, or until the death or remarriage of the plaintiff. The appellate court opined that, considering the factors relevant to an award of maintenance, particularly the plaintiff’s inability to earn any income, the Supreme Court providently exercised its discretion in determining that the plaintiff was entitled to maintenance payments sufficient to meet her reasonable expenses.
In Brzuszkiewitz v. Brzuszkiewitz, 28 A.D.3d 860 (3rd Dept. 2006), the appellate court rejected defendant’s contention that Supreme Court abused its discretion by awarding plaintiff non-durational maintenance. The matrimonial action was filed after the parties had been married for 23 years and had three children, one of whom still was under 21 years of age at the time of the appeal. The record reflected that Supreme Court considered the relevant statutory factors, giving particular emphasis to the disparity between the parties’ incomes, plaintiff’s age, her lack of assets, and defendant’s dissipation of assets. The defendant earned $55,000 per year, and his income was likely to increase before he retired. The plaintiff received only $22,000 per year from her employment and had little prospect of any significant increase before she retired, given that she was 57 years of age at the time of trial and had limited earning capacity due to her arthritis and severe hearing loss. The record also supported Supreme Court’s finding that plaintiff’s income from her pension and Social Security after retirement would be less than her current earnings, which were already insufficient to meet her modest monthly expenses. Those factors all militated in favor of an award of permanent maintenance, and the record showed that the lower court appropriately balanced plaintiff’s needs with defendant’s ability to pay.
Likewise, in Cameron v. Cameron, 51 A.D.3d 1165 (3rd Dept. 2008), inasmuch as the record reflected that Supreme Court gave appropriate consideration to the pertinent factors set forth in Domestic Relations Law §236(B)(6)(a), the appellate court rejected plaintiff’s argument that the court abused its discretion in awarding defendant non-durational maintenance.
In Kaplan v. Kaplan, 21 A.D.3d 993 (2nd Dept. 2005), the mother was awarded maintenance in the sum of $7,500 per month for 5 years. Contrary to the father’s contention, the maintenance award was a proper exercise of the trial court’s discretion, taking into consideration the relevant factors, including the parties’ pre-separation standard of living, the separate property retained by each party and their respective net equitable distributive awards of marital property, the mother’s absence from the work force as a certified social worker for most of the period following the birth of the parties’ special needs child, the mother’s continued role as the primary caretaker of a special needs child, the father’s significantly higher earning capacity as a successful partner in a radiology practice, and the short duration of the parties’ marriage.
In Saylor v. Saylor, 32 A.D.3d 1358 (4th Dept. 2006), the record established that the parties were married for 30 years, that the defendant was the primary breadwinner throughout the marriage, that the plaintiff stayed at home with the children or worked part-time for most of the marriage, thereby delaying her career prospects, and that there was a large disparity in the incomes of the parties. The Fourth Department upheld the lower court’s maintenance award on appeal, determining that the Supreme Court properly set forth the factors it considered in determining the amount and duration of the maintenance award.
Thus, each divorce case where maintenance is sought needs to be carefully evaluated on its merits to establish whether maintenance would be appropriate under the pertinent factors set forth in Domestic Relations Law §236(B)(6)(a).