The award of maintenance to the divorcing unemployed or under-employed spouse in his or her 50s may be one of the more challenging exercises of a judge’s discretion in a divorce action: too old to develop a lucrative career; too young to collect retirement assets built up over a lengthy marriage.
Although not exactly on point, in its September 30, 2015 decision in Brady v. Bounsing-Brady, the Second Department modified the maintenance award of Orange County Supreme Court Justice Debra J. Kiedaisch that had limited maintenance to 5 years at $1,733 per month. Instead, the appellate court extended the duration of maintenance to the earliest of the wife’s remarriage, her attainment of age 67, or the death of either party.
The 53-year-old wife had been disabled by a workplace injury since 1998. The parties had been married 14 years at date of commencement. The wife had been collecting $20,784 in yearly Social Security disability benefits and retirement disability benefits. (The Second Department held it was error for Justice Kiedaisch to impute another $9,216 in annual income to the wife.) By contrast, the husband was employed as a New York City firefighter earning in excess of $100,000 yearly.
The duration of maintenance is a matter committed to the sound discretion of the trial court and every case must be determined on its unique facts.
The factors to be considered in awarding maintenance include the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance.
Here, the Second Department held that Justice Kiedaisch had improvidently exercised her discretion when awarding the defendant maintenance for only 5 years.
The potential for 14 years of maintenance (plus retroactive support) after a 14-year marriage violates old rules of thumb (perhaps a third of the length of the marriage). It also is outside the presumptive range for an award under the new maintenance statute signed into law by Governor Cuomo on September 25, 2015 (D.R.L. §236[B][f]):
- O up to and including 15 years: 15% – 30%
- More than 15 up to and including 20 years: 30% – 40%
- More than 20 years: 35% – 50%
Nonetheless, blind adherence to rules of thumb, or the new statutory range may not be appropriate for the non-monied 50-year-old divorcing spouse.