When and under What Circumstances Should

Non-Durational Maintenance Be Awarded

By:   Elliot D. Samuelson, Esq.

           Editor

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".

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.

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. 

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.

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. 

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.

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.