Maintenance: How Long Is Too Long?

However, the reality is that, while I can gather all the background information in the world during that initial meeting, usually the most important factor to consider when guessing at the ultimate award is this: Which judge will get the case? This is because the “amount and duration of maintenance is a matter committed to the sound discretion of the trial court ' .” Ruane v. Ruane, 55 A.D.3d 586 (2d Dept. 2008).

Many Considerations

In a recent case I was involved in, the parties were married for 16 years and were in their early forties. They had one 15-year-old child. The parties were immigrants and lived an extremely frugal lifestyle. They had saved an unusually large percentage of the husband's income. The wife had a college degree from a foreign country and a sporadic work history. Her income, plus child support, amounted to more money each month than the family actually lived on during the marriage. With this background, one might expect that the court would award a limited amount of maintenance. Indeed, there are plenty of cases supporting this assumption. See, e.g., Ferina v. Ferina, 286 AD2d 472, 474 (2d Dept. 2001) (holding maintenance unnecessary based on recipient's income, child support and distributive award). The court in the above case, however, awarded maintenance until the wife is eligible for Social Security benefits, a totally unexpected outcome from the point of view of all parties concerned.

The problem is that the amount and duration of maintenance is highly discretionary, and the cases opining on the amount and duration of spousal maintenance are both fact-specific and inconsistent. In 2010, the legislature amended Domestic Relations Law ' 236 and replaced the 12 factors courts were previously required to consider when awarding maintenance with 20 such factors. Further, the 20th factor is a catchall, which includes whatever other considerations the court deems “just and proper.”

These 20 factors are not evaluated in a vacuum. Instead, ' 236 directs that when the court is considering an award of maintenance, it must “hav[e] regard for the standard of living of the parties established during the marriage.” DRL ' B(6)(a). In Hartog v. Hartog, 85 NY2d 36 (1995), the Court of Appeals examined the legislative history of ' 236 and determined that, when the section was amended in 1986, the legislature removed the standard-of-living factor from the lengthy list of enumerated factors and added it to the preamble of the subsection. The court explained that the legislative “history makes clear that the purpose of the amendment was to 'require[] the court to consider the marital standard of living' in making maintenance awards.” Hartog, 85 NY2d at 51. By removing the pre-divorce standard of living from the numerous other enumerated factors it “has been placed by the Legislature in a markedly distinct category ' .” Id.

The pre-commencement standard of living continues to be the backbone of the maintenance analysis and defines the import of the 20 other enumerated factors. See, e.g., DiFiore v. DiFiore, 87 AD3d 971, 973 (2d Dept. 2011) (“In determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, the standard of living of the parties during the marriage and the present and future earning capacity of both parties.” (citations omitted)). Yet this standard must also be balanced against the other factors. Courts repeatedly state that maintenance is designed to give the recipient spouse economic independence and “should continue only as long as is required to render the recipient self-supporting.” DiFiore, 87 AD3d at 973 (citations omitted) (awarding maintenance for four-year period from date of judgment). Further, courts must also consider the payor spouses reasonable needs. Griggs v. Griggs, 44 AD3d 710 (2d Dept. 2007). These factors frequently point in different directions and are incapable of being quantified.

A Short Duration

Many courts focus on the amount of time needed for the recipient spouse to become self-supporting, and hold that duration should be crafted around the retraining period. Theoretically, most recipients who are under 50 years old should have the ability to be retrained. Recent cases suggest that, despite a spouse's being out of the workforce for a long period of time, a few years of college or work experience may be enough for him or her to be deemed capable of self-support.

In Charap v. Willett, 84 AD3d 1000 (2d Dept. 2011), the Second Department affirmed a two-year maintenance award where the parties separated after a 20-year marriage. The Second Department held that the Supreme Court properly rejected the former wife's request for lifetime maintenance, given the wife's ability to re-enter the workforce. The court's decision made clear that, despite the parties' earlier agreement that the wife would stop working, the court was obligated to consider the wife's skills, training and ability to support herself when setting the award. In Unterreiner v. Unterreiner, 288 AD2d 463 (2d Dept. 2001), the Second Department affirmed a maintenance award for a period of six years where the wife had not worked in over 20 years and did not have a college degree. In affirming the award, the court held that the wife needed time to complete her education.

Similarly, in Hildreth-Henry v. Henry, 27 AD3d 429 (2d Dept. 2006), the Second Department affirmed a maintenance award for a period of five years. There, the wife was not employed during the marriage and wanted to attend college classes to earn an associate's degree. In Benzaken v. Benzaken, 21 AD3d 391, 392 (2d Dept. 2005), the court affirmed a period of maintenance for three years where the wife was unemployed and required training to get a job. The court determined that three years was a sufficient period of time for her to be trained. See also Judson v. Judson, 255 AD2d 656, 658 (3d Dept. 1998) (awarding maintenance for three years where wife required counseling and job training to become self-supporting); Schorr v. Schorr, 46 AD3d 351, 351 (1st Dept. 2007) (maintenance award for period of five years sufficient time for wife to establish herself in new career).

A More Generous Award

At other times, maintenance, even when reduced by an appellate court, is still awarded for a long period of time. See Felix v. Felix, 87 AD3d 1106, 1108 (2d Dept. 2011) (reducing the duration of maintenance from eight to six years); Smith v. Smith, 79 AD3d 1643 (4th Dept. 2010) (in the case of a 23-year marriage, reducing maintenance from 16 to nine years where the wife had high school education and limited work experience); Abrams v. Abrams, 57 AD3d 809 (2d Dept. 2008) (reducing maintenance from eight to five years); Costa v. Costa, 46 AD3d 495 (1st Dept. 2007) (reducing maintenance to a period of seven years where the wife was a homemaker and out of the workforce for 16 years); Ventimiglia v. Ventimiglia, 307 AD2d 993, 995 (2d Dept. 2003) (reducing maintenance from 20 years to eight, which the court found “is sufficient to enable the plaintiff to complete a course of training and obtain employment”); Wortman v. Wortman, 11 AD3d 604, 606 (2d Dept. 2003) (affirming maintenance for a period of nine years where the wife had been out of the workforce for over 20 years and the husband earned in excess of $1 million per year); Zabin v. Zabin 176 AD2d 262, 263 (2d Dept. 1991) (affirming the duration of a five-year maintenance award for an eight-year marriage where the wife suffered from a schizophrenic condition, but nonetheless “has the intelligence, capability and apparently the desire to function in a work environment”).

Conclusion

There is no clear reason why some courts focus on retraining and, therefore, seem to consistently rule that a short period of maintenance is sufficient, while other courts focus on different factors resulting in longer periods of maintenance.

Unfortunately, despite all of the decisions discussing the various maintenance factors, the ultimate outcome is largely dependent on the judge that hears the case. Thus, there is no useful rubric or guide that can be gleaned from the cases that can be applied with any precision. Instead, a practitioner is left to rely on general guideposts and knowledge of the judge.

Adam W. Schneid is an attorney with Carol W. Most & Associates, P.C., whose practice is devoted primarily to family and matrimonial law. Mr. Schneid is a member of the New York State, American, Westchester and White Plains Bar Associations and is admitted to practice in the Southern District of New York, the Eastern District of New York, and the District of New Jersey.

During an initial consultation, I am frequently asked: “For how long will I receive maintenance and how much will I get each month?”

I usually start by explaining that, during the action, temporary maintenance is calculated pursuant to statute, and I perform a quick calculation either in my head or by plugging numbers into software. I'm then forced to explain that while the number I provide is what a court should, and usually will, award, that award will only be made on a temporary basis. The amount and duration of the ultimate award is another matter altogether.

I have a rubric in my head of what I think someone should get. I will ask the usual questions: How long was the marriage? How old are the parties? What was their work history? How is their health? What was their standard of living?

However, the reality is that, while I can gather all the background information in the world during that initial meeting, usually the most important factor to consider when guessing at the ultimate award is this: Which judge will get the case? This is because the “amount and duration of maintenance is a matter committed to the sound discretion of the trial court ' .” Ruane v. Ruane , 55 A.D.3d 586 (2d Dept. 2008).

Many Considerations

In a recent case I was involved in, the parties were married for 16 years and were in their early forties. They had one 15-year-old child. The parties were immigrants and lived an extremely frugal lifestyle. They had saved an unusually large percentage of the husband's income. The wife had a college degree from a foreign country and a sporadic work history. Her income, plus child support, amounted to more money each month than the family actually lived on during the marriage. With this background, one might expect that the court would award a limited amount of maintenance. Indeed, there are plenty of cases supporting this assumption. See, e.g., Ferina v. Ferina , 286 AD2d 472, 474 (2d Dept. 2001) (holding maintenance unnecessary based on recipient's income, child support and distributive award). The court in the above case, however, awarded maintenance until the wife is eligible for Social Security benefits, a totally unexpected outcome from the point of view of all parties concerned.

The problem is that the amount and duration of maintenance is highly discretionary, and the cases opining on the amount and duration of spousal maintenance are both fact-specific and inconsistent. In 2010, the legislature amended Domestic Relations Law ' 236 and replaced the 12 factors courts were previously required to consider when awarding maintenance with 20 such factors. Further, the 20th factor is a catchall, which includes whatever other considerations the court deems “just and proper.”

These 20 factors are not evaluated in a vacuum. Instead, ' 236 directs that when the court is considering an award of maintenance, it must “hav[e] regard for the standard of living of the parties established during the marriage.” DRL ' B(6)(a). In Hartog v. Hartog , 85 NY2d 36 (1995), the Court of Appeals examined the legislative history of ' 236 and determined that, when the section was amended in 1986, the legislature removed the standard-of-living factor from the lengthy list of enumerated factors and added it to the preamble of the subsection. The court explained that the legislative “history makes clear that the purpose of the amendment was to 'require[] the court to consider the marital standard of living' in making maintenance awards.” Hartog, 85 NY2d at 51. By removing the pre-divorce standard of living from the numerous other enumerated factors it “has been placed by the Legislature in a markedly distinct category ' .” Id.

The pre-commencement standard of living continues to be the backbone of the maintenance analysis and defines the import of the 20 other enumerated factors. See, e.g., DiFiore v. DiFiore , 87 AD3d 971, 973 (2d Dept. 2011) (“In determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, the standard of living of the parties during the marriage and the present and future earning capacity of both parties.” (citations omitted)). Yet this standard must also be balanced against the other factors. Courts repeatedly state that maintenance is designed to give the recipient spouse economic independence and “should continue only as long as is required to render the recipient self-supporting.” DiFiore, 87 AD3d at 973 (citations omitted) (awarding maintenance for four-year period from date of judgment). Further, courts must also consider the payor spouses reasonable needs. Griggs v. Griggs , 44 AD3d 710 (2d Dept. 2007). These factors frequently point in different directions and are incapable of being quantified.

A Short Duration

Many courts focus on the amount of time needed for the recipient spouse to become self-supporting, and hold that duration should be crafted around the retraining period. Theoretically, most recipients who are under 50 years old should have the ability to be retrained. Recent cases suggest that, despite a spouse's being out of the workforce for a long period of time, a few years of college or work experience may be enough for him or her to be deemed capable of self-support.

In Charap v. Willett , 84 AD3d 1000 (2d Dept. 2011), the Second Department affirmed a two-year maintenance award where the parties separated after a 20-year marriage. The Second Department held that the Supreme Court properly rejected the former wife's request for lifetime maintenance, given the wife's ability to re-enter the workforce. The court's decision made clear that, despite the parties' earlier agreement that the wife would stop working, the court was obligated to consider the wife's skills, training and ability to support herself when setting the award. In Unterreiner v. Unterreiner , 288 AD2d 463 (2d Dept. 2001), the Second Department affirmed a maintenance award for a period of six years where the wife had not worked in over 20 years and did not have a college degree. In affirming the award, the court held that the wife needed time to complete her education.

Similarly, in Hildreth-Henry v. Henry , 27 AD3d 429 (2d Dept. 2006), the Second Department affirmed a maintenance award for a period of five years. There, the wife was not employed during the marriage and wanted to attend college classes to earn an associate's degree. In Benzaken v. Benzaken , 21 AD3d 391, 392 (2d Dept. 2005), the court affirmed a period of maintenance for three years where the wife was unemployed and required training to get a job. The court determined that three years was a sufficient period of time for her to be trained. See also Judson v. Judson , 255 AD2d 656, 658 (3d Dept. 1998) (awarding maintenance for three years where wife required counseling and job training to become self-supporting); Schorr v. Schorr , 46 AD3d 351, 351 (1st Dept. 2007) (maintenance award for period of five years sufficient time for wife to establish herself in new career).

A More Generous Award

At other times, maintenance, even when reduced by an appellate court, is still awarded for a long period of time. See Felix v. Felix , 87 AD3d 1106, 1108 (2d Dept. 2011) (reducing the duration of maintenance from eight to six years); Smith v. Smith , 79 AD3d 1643 (4th Dept. 2010) (in the case of a 23-year marriage, reducing maintenance from 16 to nine years where the wife had high school education and limited work experience); Abrams v. Abrams , 57 AD3d 809 (2d Dept. 2008) (reducing maintenance from eight to five years); Costa v. Costa , 46 AD3d 495 (1st Dept. 2007) (reducing maintenance to a period of seven years where the wife was a homemaker and out of the workforce for 16 years); Ventimiglia v. Ventimiglia , 307 AD2d 993, 995 (2d Dept. 2003) (reducing maintenance from 20 years to eight, which the court found “is sufficient to enable the plaintiff to complete a course of training and obtain employment”); Wortman v. Wortman , 11 AD3d 604, 606 (2d Dept. 2003) (affirming maintenance for a period of nine years where the wife had been out of the workforce for over 20 years and the husband earned in excess of $1 million per year); Zabin v. Zabin 176 AD2d 262, 263 (2d Dept. 1991) (affirming the duration of a five-year maintenance award for an eight-year marriage where the wife suffered from a schizophrenic condition, but nonetheless “has the intelligence, capability and apparently the desire to function in a work environment”).

Conclusion

There is no clear reason why some courts focus on retraining and, therefore, seem to consistently rule that a short period of maintenance is sufficient, while other courts focus on different factors resulting in longer periods of maintenance.

Unfortunately, despite all of the decisions discussing the various maintenance factors, the ultimate outcome is largely dependent on the judge that hears the case. Thus, there is no useful rubric or guide that can be gleaned from the cases that can be applied with any precision. Instead, a practitioner is left to rely on general guideposts and knowledge of the judge.

Adam W. Schneid is an attorney with Carol W. Most & Associates, P.C., whose practice is devoted primarily to family and matrimonial law. Mr. Schneid is a member of the New York State, American, Westchester and White Plains Bar Associations and is admitted to practice in the Southern District of New York, the Eastern District of New York, and the District of New Jersey.