This page explains New York law on spousal maintenance in a divorce: temporary maintenance while the case is pending (DRL 236(B)(5-a)) and post-divorce maintenance after judgment (DRL 236(B)(6)), under the formulas adopted in 2015. KOR Law LLP's family law practice handles initial support determinations, modifications, enforcement, and disputes involving income imputation and lifestyle. Maintenance is one piece of the case; the full sequence is in how a divorce moves through the New York courts.
Who pays, and what income counts?
The "payor" is the spouse with the higher income and the "payee" the spouse with the lower income (DRL 236(B)(6)(b)(1), (2)). Income is measured the same way as for child support under the Child Support Standards Act, and for post-divorce maintenance it also includes income from income-producing property distributed in the divorce (236(B)(6)(b)(3)). That shared definition means the deductions, imputation and add-backs explained in how child support is calculated in New York apply here too. When a spouse owns part of a company, the value of that interest and the income it produces are often disputed; the valuation methods New York courts use in ownership disputes are described in how a business is valued in a New York buyout or dissolution.
How does the formula work, step by step?
- Determine both incomes under the child support definition (DRL 236(B)(6)(b)(3)).
- Choose the formula. One applies when child support will be paid and the payor is the non-custodial parent; the other applies when no child support will be paid, or the payor is the custodial parent (236(B)(6)(c)(1), (2)).
- Calculation A (with child support): 20% of the payor's income minus 25% of the payee's income. Calculation A (without): 30% of the payor's income minus 20% of the payee's income.
- Calculation B (both formulas): 40% of combined income, minus the payee's income.
- Take the lower of A and B. If it is zero or less, the guideline amount is zero (236(B)(6)(c)).
- Apply the self-support reserve. If the guideline amount would push the payor below the self-support reserve, maintenance is limited to the difference, and there is a rebuttable presumption of no maintenance if the payor is already below it (236(B)(6)(c)(1)(f)).
- Calculate maintenance before child support. Maintenance is subtracted from the payor's income and added to the payee's for the child support calculation (236(B)(6)(c)(1)(g)).
| Situation | Calculation A | Calculation B | Guideline |
|---|---|---|---|
| Child support will be paid and payor is the non-custodial parent | 20% of payor's income minus 25% of payee's income | 40% of combined income minus payee's income | Lower of A and B, not below zero |
| No child support, or payor is the custodial parent | 30% of payor's income minus 20% of payee's income | 40% of combined income minus payee's income | Lower of A and B, not below zero |
What is the income cap?
The formula applies to the payor's income up to an "income cap," set in the statute at $184,000 and adjusted every two years beginning March 1, 2020 by consumer price index changes; "the office of court administration shall determine and publish the income cap" (DRL 236(B)(6)(b)(4)). The court system's "What's New" page reports that on March 1, 2024 the maintenance payor's income cap rose from $203,000 to $228,000. A further adjustment was due under the two-year schedule, so the figure in effect when maintenance is calculated should be taken from the court system's current worksheet. For income above the cap, additional maintenance is in the court's discretion, considering the statutory factors, and the court must explain its decision (236(B)(6)(d)).
How long does maintenance last?
| Length of the marriage | Duration, as a share of the length of the marriage |
|---|---|
| Up to and including 15 years | 15% to 30% |
| More than 15, up to and including 20 years | 30% to 40% |
| More than 20 years | 35% to 50% |
The length of the marriage runs from the wedding to the start of the divorce action (236(B)(6)(b)(8)). The schedule is advisory: whether or not the court uses it, it must consider the statutory factors and state them, and it may award non-durational maintenance in an appropriate case (236(B)(6)(f)(2)). Maintenance ends on either party's death or the payee's marriage (236(B)(6)(f)(3)), and the court must consider expected retirement assets and retirement age (236(B)(6)(f)(4)).
When can the court depart from the formula?
The court must order the guideline obligation up to the cap unless it finds the result "unjust or inappropriate" after considering factors that include the parties' age and health, present and future earning capacity, the need for education or training, wasteful dissipation of marital property, pre-marital or pre-divorce separate households, acts that inhibited a party's earning capacity, health insurance, caregiving during the marriage, tax consequences, the marital standard of living, lost earning capacity from forgone career opportunities, the equitable distribution and income on distributed assets, and the payee's contributions as spouse, parent, wage earner and homemaker (DRL 236(B)(6)(e)(1)). Any adjustment must be explained in writing or on the record, and that requirement cannot be waived (236(B)(6)(e)(2)). How the property division feeds into this is covered in how a family business is divided in a New York divorce.
What changes the answer?
- Child support and custody. They decide which formula applies (DRL 236(B)(6)(c)). Custody can change later, as explained in how to change a custody order in New York.
- Incomes above the cap. They are handled by discretion and factors (236(B)(6)(d)).
- The length of the marriage. It drives the advisory duration (236(B)(6)(f)(1)).
- A prenuptial or other agreement. A valid agreement can control maintenance (236(B)(3), (6)(a)).
- Temporary or final. Temporary maintenance uses a parallel formula and ends no later than the judgment (236(B)(5-a)(c), (g)).
- Later changes. An award after trial may be modified on the payee's inability to be self-supporting or a substantial change in circumstances, including retirement with a substantial change; incorporated agreements require extreme hardship (236(B)(9)(b)(1)).
For example: a 12-year marriage with two children
For example, imagine spouses in Westchester married for 12 years when the divorce starts, with two children who will live mainly with the lower-earning spouse. (This is a made-up illustration, not a real client or result; the numbers are only arithmetic.) The payor's income is $150,000 and the payee's is $50,000, both under the cap.
Because child support will be paid and the payor is the non-custodial parent, Calculation A is 20% of $150,000 ($30,000) minus 25% of $50,000 ($12,500), or $17,500. Calculation B is 40% of $200,000 ($80,000) minus $50,000, or $30,000. The guideline is the lower amount, $17,500 a year (DRL 236(B)(6)(c)(1)). The advisory duration for a 12-year marriage is 15% to 30% of 12 years, about 1.8 to 3.6 years (236(B)(6)(f)(1)). Child support is then calculated with $17,500 moved from the payor's income to the payee's.
Common mistakes
- Calculating child support first. Maintenance comes first (DRL 236(B)(6)(c)(1)(g)).
- Using the wrong formula. It depends on whether the payor pays child support (236(B)(6)(c)).
- Treating the duration schedule as fixed. It is advisory, and non-durational awards remain possible (236(B)(6)(f)(2)).
- Relying on an old cap figure. The cap is adjusted every two years (236(B)(6)(b)(4)).
- Ignoring retirement. The court must consider it (236(B)(6)(f)(4)).
- Signing an agreement without understanding modification limits. Incorporated agreements need extreme hardship to change (236(B)(9)(b)(1)).
What to do this week
- Collect three years of tax returns and current pay records for both spouses if available.
- Note the date of marriage and the date the action started or will start.
- Check for any prenuptial or postnuptial agreement.
- Run both formulas with the current cap from the court system's worksheet.
- List facts relevant to the deviation factors, such as caregiving or career sacrifices.
- Speak with counsel before agreeing to any maintenance terms.
Frequently asked questions
Can I get maintenance while the divorce is pending?
Yes. Temporary maintenance uses parallel formulas and ends no later than the judgment of divorce or either party's death (DRL 236(B)(5-a)).
Does remarriage end maintenance?
Post-divorce maintenance terminates on the payee's valid or invalid marriage, on either party's death, or on modification (DRL 236(B)(6)(f)(3)).
What if one spouse is unrepresented?
The court may not enter a maintenance order or judgment unless it informs the unrepresented party of the guideline obligation (DRL 236(B)(6)(g)).
Is maintenance different in Family Court?
Spousal support in Family Court follows its own statutes. This page addresses maintenance in a divorce in Supreme Court under DRL 236.
Can past-due maintenance be forgiven?
Arrears reduced to a final judgment cannot be reduced or annulled, and other arrears that accrued before an application to modify can be changed only if the defaulting party shows good cause for not applying sooner (DRL 236(B)(9)(b)(1)). Orders are enforceable under CPLR 5241 or 5242 or in any other manner provided by law (236(B)(9)(a)), including the tools described in what happens after a money judgment is entered in New York. Support collection through wages follows its own rules, which differ from the creditor rules in how much of your wages a creditor can take in New York.