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Sometimes during divorce or after a divorce concludes, the spouse receiving spousal support may begin cohabiting with another partner. Should you have to pay spousal support, which would effectively go to supporting that couple instead of an independent spouse?
Last year, a case called Sanseri v. Sanseri came before the New York Supreme Court and it addressed when a trial court can terminate maintenance.
New York law for terminating maintenance has changed over the years to keep up with our changing culture. In 1978, based on the case Northrup v. Northrup, the court ruled that unless the person was habitually living with a man and “holding herself out” as his wife, no modification was allowed.
Decades later, the NY Legislature restructured the concept of maintenance to provide financial assistance based on a model of “economic dependence.”
The husband and wife were not yet divorced because certain issues still had to be resolved. The court ordered maintenance when the divorce began based on income disparities. Later, the wife admitted to living with another man, sharing a bedroom and commingling finances through a joint checking account. She accepted an engagement ring from her new partner. She shared family activities with him, listed him as an emergency contact for her child, shared birthdays, holidays and they traveled together.
Whether she should continue receiving maintenance hung up on the point that she had never “held herself out” as the spouse of her fiancé.
After reviewing the details and applicable case law, the court ruled that the burden of proof requires that the wife show a need for maintenance or the inability to provide for herself. The court based the ruling on the new legislative economic-based theory. The wife can re-open the case and provide evidence that supports the continuation of maintenance as necessary for her to maintain independence in her current situation. Meanwhile, the court suspended maintenance, pending the outcome of the hearing to reopen the case.
If you have questions about spousal support, Attorney Chris Palermo will be glad you answer your questions and advise the best course of legal action.
Governor Andrew Cuomo recently signed Bill A7645/S5678, legislation passed by the New York legislature last summer to revamp spousal maintenance in New York. The initiative to establish new guidelines came when New York adopted no-fault divorce in 2010 (the last state in the country to legalize no-fault divorce). The legislature put temporary guidelines in place then, but promised to extensively review the statute and make permanent changes.
• Moving forward, spousal maintenance or alimony will be calculated using a formula. Under prior guidelines, the court determined it on a discretionary basis
• For purposes of employing the formula, income will be capped at $175,000, down from $524,000 under the prior guidelines
• The guidelines allow for a reduction of spousal maintenance payments for payors who are already paying child support
• Under the new provisions, the courts have some discretion to deviate from the guidelines, based on what judges determine to be unjust or inappropriate
• Under the new law, the longer the marriage, the longer the support obligation
• The new guidelines don’t consider “enhanced earning capacity” to be a marital asset in equitable distribution determinations. Accordingly, the worth of an advanced degree is no longer factored in when dividing marital property.
• Under the new guidelines, spousal maintenance ends if the recipient dies or gets remarried.
The bill retains many of the factors that the court may use to determine whether spousal maintenance is warranted, including age and health of the parties, waste of assets, and standard of living during marriage.
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