When Should Non-Durational Maintenance Be Awarded - Part 2

From Page 1

The court went on to note that there was a plethora of cases awarding non-durational maintenance but pointed out that these decisions focused on the inability of the dependent spouse to become self-supporting. However, he added, that such results did not specifically consider the future financial circumstances and work life expectancy of the payor spouse. The court held that although the wife is not capable of becoming self-supporting, the husband lacked the ability to pay non-durational maintenance, and instead fixed the period. In his analysis, the court remarked that a non-durational award in the case would be devoid of any consideration of relevant statistics or of a realistic analysis of the payor's future ability to undertake an open-ended obligation. He then concluded "rather, such award would be the product of flawed speculations and assumptions placing the emphasis on the circumstances and needs of the recipient spouse while ignoring the enumerated factors of DRL §236(B)(6)(a) as they apply to the payor spouse." It would seem that fixing the payment of maintenance by a 59 year old man for 11 years, would make it far more difficult for him to apply for a modification of such award where the term was not fixed and was simply conditioned upon death or remarriage.

Another Case Study

In DiBlasi, the parties were married for 19 years. The wife was 43 and the husband 51, the parties had 5 children. A forensic evaluation determined the husband's gross income from all sources to be $320,000. The wife had not worked during the marriage, and last worked prior to marriage as a clerk earning $28,000. Based upon such facts, the Second Department determined that the purpose of maintenance was to enable a spouse not only to become self-supporting, but also to obtain economic independence. The court noted that each trial court has the discretion to make an award for maintenance in both amount and duration, based upon the peculiar and unique circumstance of each family. The court went on to reflect that the factors that must be considered pursuant to DRL §236(B) form the basis for the award but that great weight must be given to the parties' pre-separation standard of living, and each litigant's present earning capacity as well as their future prospects to become self-supporting. The husband was a principal in an auto dealership. The parties maintained an upper middle class lifestyle. In applying such parameters to the DiBlasi's, the court determined that the award of the trial court of maintenance for a two year period was grossly insufficient and increased maintenance for an additional five years. Their expressed reason was that at the latter date, their youngest child would be off to college, there was no longer any reason to remain at home, and this additional period of maintenance would enable the wife ultimately to become self-supporting. These facts were not reported in the decision, but were obtained from the record on appeal, and can be easily retrieved from any Supreme Court library.

Although DRL §236(B) requires that the court consider each of the ten enumerated factors and any other factor that is found to be just and proper arriving at an equitable result, while at the same time balancing the needs of both parties. There are a paucity of published decisions that detail the extent each enumerated factor and the weight to be given to them were weighed, so Justice Falanga's decision was a welcomed change.

Although the statute does not have a specific direction that non-durational maintenance should be awarded in a marriage of long duration populated with several children, the tendency of the courts seemed to be more prevalent in the earlier decisions following the enactment of the statute to do so. In marriages of shorter duration or childless marriages, there was a great reluctance on the part of judges to award non-durational maintenance. Rather in those instances, specific fixed periods were fashioned. Today, there seems to be a trend away from non-durational support, which it is felt, is an unwise choice.


Those who argue for a continuation of non-durational support, argue that DRL §236B gives to the court greater flexibility and sufficient discretion to make a case-to-case determination rather than to direct fixed periods for such payments. In fact, DiBlasi made such pronunciation, but wrongfully concluded fixed, rather than an indefinite period, was the better result. Those who argue that non-durational maintenance should never be employed, proffer that the length of time that is necessary for a person to become self-supporting can vastly vary and it is far more equitable to a paying spouse to know the fixed period of time that he or she might be responsible for maintenance payments.

It seems the better view to adopt would be that non-durational maintenance would be the fairest to both parties in all matters since DRL §239 permits modification based upon a change of circumstances or where financial hardship is incurred. When maintenance is fixed for a specified period of time, the chances of the court modifying the award seems more unlikely than when non-durational payments are directed.

It is hard to believe that twenty-eight years have past since the statute was enacted, and the courts seem still divided whether to grant non-durational maintenance. Only time will tell what course will be followed during the foreseeable future.

*Elliot Samuelson is the senior partner in the Garden City matrimonial law firm of Samuelson, House & Samuelson, LLP and is a past president of the American Academy of Matrimonial Lawyers, New York Chapter and is included in "The Best Lawyers of America" and the "Bar Registry of Preeminent Lawyers in America." He has appeared on both national and regional television and radio programs, including Larry King Live. Mr. Samuelson can be reached at (516) 294-6666 or [email protected]

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