By Hope Tuber
One of the first concerns clients have is if they can “afford” a divorce. For those that either work part time or not at all there is a real fear that they will be awarded an amount that is insufficient to financially survive. First, stay away from ill-informed advice. Do not Google your question and do not ask those who do not specialize in the field of matrimonial law. The “general rule” is that for every three years of marriage one is entitled to one year of maintenance. However, it also can depend on a host of factors. In 2013, the Second Department in Jaramillo v. Jaramillo decided such an issue.
In Jaramillo, the trial court awarded the wife the sum of two thousand dollars ($2,000.00) a month for six years after a non-jury trial. At the trial level the facts substantiated that the husband earned approximately $62,567.00 a year or $5,213.92 a month. Additionally, the Court found that he had $3,818.80 worth of monthly expenses. Thus, he had approximately $1,395.12 a month left, but he was also responsible for paying $235.34 a week in child support. The husband appealed to the Second Department, arguing that that award was excessive in light of the facts and circumstances in this case.
In determining whether the Court abused its discretion, the Court explained what a judge should consider in awarding maintenance. Normally, the amount and duration of maintenance is a matter left to the discretion of the Court after considering all of the facts of a particular case. The Court should order maintenance in such amount as required considering the following: (1) the standard of living of the parties during the marriage; (2) the income and property distribution of the marital property of the parties; (3) the duration of the marriage; (4) the health of the parties; (5) the present and future earning capacity of both parties; (6) the ability of the party seeking maintenance to become self-sufficient; and (7) the lost or reduced lifetime earnings by the party seeking maintenance.
Armed with this information, we can explain whether a party may or may not have to pay or receive maintenance. Though the challenge is that since it is left to the discretion of the judge, it is not easy to predict what may or may not happen in your particular case, at least until a judge is assigned. Short duration marriages, less than 3 years rarely see a maintenance award—though not unheard of. The window in between 3 years and 30 years is where the battle is fought regarding duration.
Looking at the factors listed above, your attorney would need to know a couple of things. First how long have you been married and a financial picture of your marriage. If your spouse was making a million dollars a year and you stayed at home to raise the kids after 15 years, I would feel comfortable saying that you would be receiving maintenance. But again, the length of time gets tricky, if for instance you are a doctor that decided to stay home your duration may not be for very long. The idea of maintenance is to tide you over until you can become self-supporting. If you are employable, you are expected to get a job. Perhaps your duration of maintenance will not be as long as say someone who did not graduate high school and has been out of the work force for 15 years.
In Jaramillo, the Second Department held that the trial court abused its discretion regarding the amount awarded. After looking at the finances of the parties, $2,000.00 a month was physically impossible. The Second Department sent the issue back to the trial Court to fashion an award. However, the Court held that the duration was not unreasonable. The point to take away from this blog is that maintenance awards are left to the Court with only basic guidelines that the Court will consider. There are a host of factors that can sway a Court in one direction or another. You will need an attorney familiar with the Judges in your area to know what they typically do and how they think.