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.

Recoupment of Maintenance After Successful Appeal

I have previously written about recoupment of pendente lite maintenance in a divorce action after the entry of a final maintenance award. The recent decision by the Court of Appeals in Johnson v. Chapin, previously discussed in this post, allowed recoupment of pendente lite maintenance as an adjustment to the equitable distribution award.

But what happens if the permanent maintenance award is overturned on appeal? In Rader v. Rader, 54 A.D.3d 919 (2nd Dept. 2008), the Appellate Division, Second Department, held that public policy prohibits recoupment of both pendente lite and permanent maintenance paid pursuant to court order or judgment which is subsequently set aside on appeal.

In Rader, the plaintiff stopped paying the defendant maintenance in January 2006, contending that the parties’ judgment of divorce entered September 18, 1998 required him to pay maintenance only for a period of 10 years, retroactive to the commencement of the divorce action in January 1996. The defendant claimed that she was entitled to maintenance until July 2007-10 years after the date of the decision awarding her maintenance.

In an order dated July 7, 2006 the Supreme Court granted the defendant’s motion, directed the plaintiff to pay the defendant maintenance for a period of 10 years, retroactive to July 1997, when the decision awarding her maintenance was made, and granted the defendant leave to enter a money judgment for maintenance arrears, plus the sum of $1,500 as an attorney’s fee. A money judgment was subsequently entered on July 26, 2006. The plaintiff appealed, and after some additional litigation between the parties, ultimately paid the sum of $54,000 in maintenance for the period from July 2006 until April 2007, plus the sum of $2,000 as an attorney’s fee, for a total sum of $56,000, while the appeal was pending.

In a decision dated April 17, 2007, the Appellate Division reversed the money judgment, and modified the order dated July 7, 2006 upon finding that the plaintiff’s obligation to pay maintenance terminated on January 9, 2006, or 10 years after the divorce action was commenced. Subsequently, the plaintiff moved for reimbursement of the sums of $54,000 in maintenance and $2,000 in attorneys’ fees he paid. In opposition, the defendant noted, inter alia, that she already spent the disputed $56,000 on her living expenses and attorneys’ fees. The Supreme Court denied the plaintiff’s motion.

The Second Department held that there is a strong public policy against recoupment of both pendente lite and permanent maintenance paid pursuant to a court order or judgment which is subsequently set aside on appeal. The reason for this policy is that maintenance and child support payments are “deemed to have been devoted to that purpose, and no funds exist from which one may recoup moneys so expended” if the award is thereafter reversed or modified. The Court further noted that if there were unpaid arrears of other obligations, such as carrying charges for the marital residence, the payor spouse may be granted a credit against those arrears for maintenance paid pursuant to an order which was reversed on appeal.

Is Rader still good law after the Court of Appeals’ decision in Johnson v. Chapin?. I believe that it is, especially with respect to the final maintenance awards. However, it is likely that we will see divorce lawyers making arguments for recoupment even with respect to the final maintenance awards overturned on appeal. I am familiar with a divorce case that is currently pending here in Rochester that may raise issues identical to those in Rader after the Court of Appeals’ decision in Johnson v. Chapin. I will post on that case once it has been resolved.