When Should Non-Durational Maintenance Be Awarded

Since the passage of the equitable distribution law on July 19, 1980 which set forth new standards for the award of maintenance, the courts have grappled with the issue of whether to award fixed or life time maintenance to a needy spouse. More apt, would be the phrase "non-durational maintenance".

Fixed vs Non-Durational Time Frame

No matter what term is used by the court to discuss such award and despite the statute, it is clear that many jurists are having difficulties with articulating the proper basis for deciding whether to fix maintenance for a specified term of years, or to award such maintenance until the death or remarriage of a spouse. Whether one method is fairer than the other remains for you to decide.

Recent Decisions

Two recent cases, one a lower court case in Nassau County, J.S. v. J.S., (NYLJ April 4, 2008 at 29, col 3) decided by Justice Anthony J. Falanga, and an Appellate Division, Second Department case, DiBlasi v. DiBlasi, ___ A.D.3d ___ (2d Dept. 2008), expressed similar, but not identical views in awarding maintenance for a fixed term. Both decisions were reached after considering varying facts and circumstances of the parties. DiBlasi awarded a 43 year old wife with 5 children and no recent work experience, maintenance for 5 years, while in J.S., a 59 year wife without minor children and with no recent work experience, received maintenance for 11 years. In reading these cases, I recalled once again the classic lines in George Orwell's Animal Farm that all animals are equal, but some animals are more equal than others.

Accordingly, it will prove fruitful to examine in detail both decisions to determine the impact the award will have, not only to the recipient spouse, but the paying spouse as well...and whether a non-durational award would have been a better option.

Examination of Cases

Both husbands worked in auto dealerships, Mr. DiBlasi was an owner and Mr. J.S., an employee. In J.S. v. J.S. at the time the action for divorce was commenced, the parties had been married for almost 38 years. Both were 59 years old. They had three emancipated children who were all presently self-supporting. The wife argued that she should be awarded non-durational maintenance because she was totally disabled and could not engage in gainful employment because of a deteriorating health condition which included allegations that she was a cancer survivor, was beset with periods of clinical depression, chronic fatigue syndrome, shingles, sciatic, irritable bowel syndrome, colitis, gastroesophageal reflux disease as well as a spinal disc herniation. Unfortunately, the wife offered no medical testimony to substantiate these alleged medical conditions. At the time of trial, she was unemployed for the past 4 years and received social security disability benefits of about $700 a month as well as Medicare coverage. By contrast, the husband was a salesman of Jaguar automobiles and in the past had earned income between approximately $280,000 in 2000 to about $100,000 in 2006, he having changed jobs on several occasions during the past three years because his prior employer, a Jaguar dealership in Brooklyn, went out of business.

Apart from the marital residence, the other marital assets were already virtually exhausted. The marital residence was worth approximately $800,000. Based on these factual predicates, Justice Falanga, remarking that as a matter of first impression "a court must consider ... the perspective financial circumstances and work life expectancy of the payor spouse" proceeded to fashion an award he felt to be fair to both litigants. Whether his pronouncement that such issue was one of first impression was accurate, appears to be problematic. He went on to reflect that an award of non-durational maintenance may require a paying spouse in his or her nineties and older to continue to support a dependent spouse in his or her nineties and older.

Inadvertent Consequence of Decision

In holding that it would be unfair to the paying spouse to have maintenance fixed without duration, the court may have inadvertently created a burden to the elderly paying spouse, by directing that the 59 year old husband pay maintenance until his 70th birthday or 11 years following the date of the divorce judgment. This observation is made because it if felt that when the husband ceases work at a normal retirement age of 65, his application for a modification would be more favorably received, then if he makes such application at age 70, where the court already decided that he should work till such age. To be successful on a modification application, new facts must be raised. A court hearing the application might rightfully conclude the issue was already heard and decided in the original divorce action.

In making such award, Judge Falanga, also noted that the receiving spouse, the wife, will have to engage in at least part time employment through her 70th birthday in order to sustain herself, despite her alleged maladies, the judge finding that she was incapable of being self-supporting, and was receiving disability payments. It is reasonable to assume that the marital residence would be shortly sold for perhaps a minimum of $750,000 with each party to obtain $375,000. At 5% interest, that would return approximately $19,000 per year to each spouse.

Under all of these circumstances, we question the court's decision to impute income to the wife of $20,800 a year especially since she testified and the court found she was a high school graduate with no business skills, her historic earnings were modest, she could not return to work and had no employment income for the past 4 years. In awarding maintenance of $3,000 a month to the wife for 11 years, she may receive more income than her husband if she returns to work, or if the husband's income dramatically drops during the next 10 years. There was no further explanation of how the court imputed these monies to the wife. Imputation of $110,000 a year of income to the husband was at least based upon his past historic employment in the sale of Jaguar automobiles, but did not reflect the trend of his reduced earnings in the most recent years.

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