Friday, January 27, 2017


Under DRL 236-B, the duration of post-divorce maintenance can be determined by an advisory durational formula directly linked to the "length of marriage" which is defined as running from the date of marriage until the date of commencement of the divorce action. But what if the couple have been living jointly for a considerable length of time but only married for several years? That issue was somewhat faced in KAPROV v. STALINSKY, 2016 NY Slip Op 8509 - NY: Appellate Div., 2nd Dept. 2016 where the couple were married in 1998 but have lived together prior thereto for around 14 years:

"A party's maintenance obligation is retroactive to the date the application for maintenance was first made (see Domestic Relations Law § 236 [B][6][a]). However, the party is also entitled to a credit for any amount of temporary maintenance . . . already paid" (Huffman v Huffman, 84 AD3d 875, 876). Here, in arguing that the maintenance award is out of proportion to the duration of the marriage, the husband fails to recognize that, pursuant to the version of Domestic Relations Law § 236(B)(6)(a) in effect at the time of the commencement of this action, one of the factors a court should take into account in deciding the amount and duration of a maintenance award is "the existence and duration of a pre-marital joint household" (Domestic Relations Law § 236 [B][6][a][6]). The wife testified that the couple lived together from 1984 to 2010, approximately 26 years. Thus, an 11-year award of maintenance is not out of proportion with the duration of the joint household. "The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting'" (Groesbeck v Groesbeck, 51 AD3d 722, quoting Sirgant v Sirgant, 43 AD3d 1034, 1035). "The amount and duration of maintenance is committed to the sound discretion of the trial court, and each case is to be decided on its own unique facts" (Divan v Divan, 135 AD3d 807, 809; see Lamparillo v Lamparillo, 130 AD3d 580, 581; Heydt-Benjamin v Heydt-Benjamin, 127 AD3d 814, 815). The maintenance award was appropriate for the wife to become self-supporting given the factors involved, including the duration of the pre-marital joint household, as well as the wife's age, absence from the workforce, reduced earning capacity, and limited education (see Domestic Relations Law § 236[B][6][a])."

NOTE - Even under the new guidelines, DRL 236 (B) (g) (e) provides: "(1) The court shall order the post-divorce maintenance guideline obligation up to the income cap in accordance with paragraph c of this subdivision, unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the following factors, and adjusts the post-divorce maintenance guideline obligation accordingly based upon such consideration:... (f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;"

No comments:

Post a Comment