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Alimony, which is referred to as “maintenance” in New York, is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.
In New York, alimony is not mandatory in a divorce or legal separation. A court may decide not to grant alimony or to limit the amount and duration of alimony depending on the ability of both parties to provide for their own needs. It is uncommon for maintenance to be granted for life. Typically, maintenance is limited in duration. Its purpose is to allow the recipient spouse to become self supporting or to improve the recipient spouse’s ability to be self supporting.
In New York, a court decides whether a spouse should be allowed maintenance on a case by case basis. Factors that affect the amount and duration of maintenance in New York include: the income disparity between the parties, the ability of each party to independently earn an income, the duration of the marriage, the health of the parties, and the presence of very young children. Courts may also take into account other relevant factors.
Tax Consequences of Alimony
It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.
However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:
- (1) The payment is be a cash payment (such as a check or money order)
- (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
- (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
- (4) The payer and payee are not members of the same household at the time payments are made
- (5) There is no liability to make payments after the death of the recipient spouse
Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.
To fully understand divorce law and family law, it may be necessary to read and interpret statutes with case law and regulatory law. It is important to check to see if laws are up date. For these and other reasons, it is always best to consult with a qualified family law attorney. The legal information on this website is not intended as legal advice and should not be relied on as such. It is intended only as an introduction to the way that the law functions in these areas.
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