Terminating Spousal Support Provisions After Divorce Due to Change In Circumstances

In New York, spousal support, also sometimes referred to as “alimony” or “spousal maintenance” can be granted in a divorce case to either spouse by the court pursuant to Domestic Relations Law §236. Alternatively, the parties can agree to a specific amount of maintenance, its duration, and the circumstances under which it will terminate in their settlement agreement.

Factors that a judge or the parties will consider in determining spousal support, among others, include:

The duration of the marriage and the age and health of both parties;
The present and future earning capacity of both parties;
The ability of both to become self-supporting;
The reduced or lost lifetime earning capacity resulting from having foregone or delayed education, employment training or career opportunities during the marriage;
The presence of children;
Tax consequences.

Even once the amount of maintenance is determined and included in the judgment of divorce or settlement agreement, spousal maintenance can be modified.

However, if the maintenance was set by the parties’ settlement  agreement, the party seeking its modification due to a change in circumstances will have to meet a significant burden of proof. Specifically, the party seeking the change will have to show prima facie evidence of “extreme hardship” before the court can hold a hearing to resolve these issues. Extreme hardship means that the payor’s circumstances are so adverse that the party can’t meet its living expenses without modifying spousal support. In a recent decision, McKelvey v. McKelvey, 2015 N.Y. Slip. Op. 02830 (3rd Dept. 2015), the Appellate Division found that the husband presented such evidence when he was able to show that “the undisputed proof indicating that the husband earns, after taxes, less than his monthly support obligation was sufficient to demonstrate prima facie evidence of extreme hardship, and Supreme Court should have held a hearing on his request to modify his support obligation.” Once such evidence is presented then the court hearing the case would hold a fact-finding to determine how spousal maintenance should be modified.

If spousal maintenance was set by a judge after a hearing, the party seeking the modification must establish a substantial change in circumstances and show that the needs of the dependent spouse or financial abilities of the paying spouse that warrant modification. The party making such request would face a significant burden and the court will have to consider such factors as the party’s current and past earnings, costs of living, financial obligations, as well as assets and liabilities.  In Klapper v. Klapper, 204 A.D.2d 518 (2d Dept. 1994), 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.”

Further, a party who willfully or voluntarily reduces income will not receive a reduction in support payments. If evidence of such actions is presented to the court, the party seeking modification will not receive and is also likely to be ordered to pay the other spouse’s attorneys’ fees.

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.

Future Changes to Spousal 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. At the same time, the Legislature directed that a law revision commission be set up to review New York’s spousal maintenance law and make recommendations to the legislature with regard to potential changes.

On May 15, 2013, the Commission issued its “Final Report on Maintenance Awards in Divorce Proceedings”.  The Commission recommended that that a mathematical formula be used to calculate a presumptive award of post-divorce income from one party to the other based on the parties’ combined adjusted gross income of $136,000. It stated that in awarding post-divorce income, the court can adjust the presumptive award based on a set of statutory factors if it finds that the presumptive award is unjust or inappropriate based on the circumstances of the parties.  If the parties’ combined adjusted gross income exceeds $136,000, the Commission recommended that the mathematical formula apply to that portion of the parties’ combined income which is at or less than $136,000, and that the court be guided by a set of factors in considering whether an additional award is justified based on any excess income.

The Commission also recommended that the duration of any post-divorce income award be based on consideration of the length of the marriage, the length of time necessary for the party seeking post-divorce income to acquire sufficient education or training to enable that party to find appropriate employment, the normal retirement age of each party as defined by the Internal Revenue Code and the availability of retirement benefits, and any barriers facing the party seeking post-divorce income with regard to obtaining appropriate employment, such as child care responsibilities, health, or age. The court would have to state the basis for the duration of the award in its decision granting the award. Further, the duration of temporary maintenance awards would be limited so that maintenance awards do not exceed the length of the marriage.

One suggestion that was made by the Commission that would be a significant departure from the existing law is that the Commission recommended that one party’s increased earning capacity, no longer be considered as a marital asset in equitable distribution under section 326B(5), and that any spousal contribution to the career or career potential of the other party be addressed in an award of post-divorce income. The concept of an “increased earning capacity”, also known as “enhanced earnings“, has created much prior litigation because of the asset’s intangible nature, the need for valuation, the speculative nature of its “value” as well as the costs associated with valuations, and problems of double counting increased earnings in awards of post-divorce income and child support.

The Commission additionally recommended that the provisions of a revised temporary maintenance statute in the Domestic Relations Law be mirrored in section 412 of the Family Court Act governing spousal support awards.

If the Legislature adopts the report, it is likely to represent some of the most significant changes to New York’s Family law since New York adopted its equitable distribution and child support statutes. It remains to be seen if the Legislature will accept some or all of the Commission’s recommendations.

Divorce, Immigrant Spouse, Maintenance and Affidavit of Support

When either a husband or wife marries someone who is not a legal resident of the United States and brings them to this country, as a part of his/her immigration application, the spouse who is a citizen of the United States certified that he/she would provide support for their spouse once that spouse is in the United States and would not allow her to become a public charge. See 8 U.S.C. §1182(a) (which prohibits immigration when the immigrant has no means of support and is likely to become a public charge). This requirement is satisfied by what is known as an affidavit of support, I-864 form. By signing it, the party certifies that he/she would provide to their spouse with income of 125% of the Federal Poverty Level guidelines. For 2008, the Federal Poverty Level guidelines state that the poverty level income for a household of one is $10,400.00, and the corresponding income level under the affidavit of support is $13,000.00.
According to the Appellate Division, Fourth Department, where a party signs an affidavit of support, from I-864, that affidavit is a legally enforceable contract. Moody v. Sorokina, 40 A.D.3d 14 (4th Dept. 2007). In that case, a Ukrainian national emigrated to the United States to marry her eventual husband in New York. When the husband filed for divorce several years later, the wife sought to enforce the Affidavit of Support for purposes of determining the amount of support payments to be made by the husband. While the trial court rejected the wife’s argument and held that the affidavit could not be enforced in court by private parties, the Appellate Division, Fourth Department reversed the lower court and held that the affidavit of support was enforceable. The Appellate Division held that the execution of a affidavit of support creates a legally enforceable agreement between the parties involved that can be enforced by the sponsored immigrant in any federal or state court. Id. at 401. Moreover, the Fourth Department explained that the terms of the agreement are not affected by a subsequent judgment of divorce. As such, the agreement remains fully binding on all parties until the sponsored immigrant “has worked 40 qualifying quarters of coverage,” as defined by the Social Security laws. The enforcement of the right of support also includes attorneys fees. Id.
Therefore, when the spouses separate and the immigrant spouse is unable or unwilling to work, the spouse who is a citizen of the United States will be responsible for their spouse’s support until such time as that spouse becomes self-sufficient, or perhaps even indefinitely.

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).