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Social Security CardTwo decisions this month of the Appellate Division, Second Department, tied the termination of post-divorce spousal support (“maintenance”) to a specific ages: 65 in Duval v. Duval; and 62 in Sansone v. Sansone.

In Duval, after 20 years of marriage, the wife commenced her action for divorce. The decision reports that “both parties are 56 years old.” During the course of their marriage, the parties had two children, one of whom was emancipated. In 1992, shortly before the birth of their first child, the husband became the sole source of financial support for the family. The wife was a stay-at-home mother prior to the commencement of the action. In approximately 1999, the wife’s father, an insurance agent, retired, and the husband took over his father-in-law’s insurance agency [how important is this fact to the decision?].Continue Reading Tying Maintenance to Social Security

For the second time in six weeks the Appellate Division, Third Department, reduced an award of spousal maintenance for the failure to adjust for the distributive award based on the husband’s business. In its October 22, 2015 decision in Gifford v. Gifford, the Appellate Division, Third Department, modified a maintenance award because of the trial court’s failure to adjust the husband’s income for computation purposes to account for the distributive award to the wife based on the husband’s business. In September, in Mula v. Mula, the Third Department held that once valued, the income attributable to ownership of a professional practice may not also be the basis on which to award spousal maintenance (see, the September 14, 2015 blog post).

In Gifford, the parties in this divorce had stipulated a resolution of Equitable Distribution issues, including a $210,000 award to the wife based on the value of the husband’s geotechnical engineer business. After a trial on maintenance on counsel fees, Supreme Court Justice Vincent J. Reilly awarded the wife nondurational maintenance of $6,000 per month from January 1, 2014 through January 31, 2020, $3,000 per month from February 1, 2020 through June 1, 2022, and $800 per month thereafter, terminating upon either party’s death or the wife’s remarriage.

The Third Department held that Justice Reilley erred in utilizing the husband’s total average annual income of $332,431 for purposes of calculating a maintenance award, without making an adjustment for the distributive award of the company.Continue Reading Double-Dipping: The Interrelationship of Business-Based Distributive Awards and Spousal Support