Can I Receive Spousal Maintenance Instead of Marital Property?

New York’s formulas and guidelines direct the state’s Supreme Court in how to award custody and spousal maintenance in divorce cases. This same blueprint can be used as starting points for privately negotiated settlements outside of the courtroom.

Division of assets and debts, spousal maintenance, and child custody are crucial components of a divorce, but they don’t have to be negotiated as standalone elements. Each divorce term can impact the other.

If you want spousal maintenance more than an equitable share of the marital property (or vice versa), our legal team at Samuelson Hause PLLC will uncover every financial aspect of the divorce to see what’s in your best interest. Whether that’s more spousal maintenance or more property depends on the circumstances of your case.

Evaluating Your Needs

No doubt, going through a divorce is an emotional time. Yet putting aside your emotions can help you best determine what you require to start anew.

We can ask you questions that frame the end goal:

  • What is your current income?
  • What are your current expenses?
  • Do you want to live in the same home after the divorce?
  • Will you need to return to school?
  • What do I want my life to look like next year? In 5 years?
  • What possessions am I willing to let go of?
  • Am I trying to punish my ex?

Once you have a firm grasp of what is most important to you and what you need financially, you will be able to negotiate with a sense of awareness and purpose.

Getting a True Financial Picture

Financial disclosures are early in the process. We look at what is separate property and what is marital property. Assets can include real estate, pensions, IRAs, collectibles, vehicles, furniture, fine art, stocks, bonds, investments, and much more.

Generally, the separate property belonged to a spouse prior to the marriage. Marital property is anything (with exceptions) that was acquired during the marriage. Coming to an agreement on what falls into each category and its value can be complicated.

A thorough accounting of property is necessary for effective negotiation in any New York divorce.

Negotiating with Flexibility

A divorce settlement will most likely have tradeoffs. The tradeoff might be worth it if you receive what you want most. Maybe you choose to forego the summer home for a higher monthly maintenance award. Perhaps you divest a joint business interest for an increased maintenance award. Or you choose to waive your right to their pension. There are many possibilities.

Terms can also be graduated. Perhaps you need more financial support in the first five years of your divorce. Perhaps what is best is a lower monthly amount but for a longer period of time. A settlement can be creative if it is fair. The court will generally sign off on an agreement if it doesn’t overly favor one spouse over another.

Receiving a Monthly or Lump Sum Payment

Many people think of spousal maintenance as a monthly payment that one former spouse makes to another. While that is often the case, some spouses negotiate a one-time lump-sum payment instead.

There can be benefits to receiving a lump-sum payment:

  • Immediate access to your total alimony payment
  • No chance of missing a future payment
  • Ability to pay off debts
  • Fund education or other career training
  • Use spousal support to buy a home or other big-ticket needs
  • Invest the funds

Receiving a lump-sum payment also has downsides:

  • Managing large sums at once is difficult for some people
  • No alimony modifications at a later date
  • Could lose the ability to qualify for financial aid
  • Bigger tax obligation

You may have heard that the tax rules have changed, no longer requiring payees to claim alimony as income. That’s only half true. Federal income tax laws changed in 2019, but New York tax law regarding alimony did not. On the federal level, alimony is no longer taxed as income for the payee nor is it deductible for the payor. On the New York state level, alimony is taxable as income and a deductible expense for the payee.

Whether it is advantageous to receive a lump-sum payment depends on the specifics of your case and financial situation.

Skilled Attorneys for Creative Solutions

The vast majority of divorces are settled outside the courtroom. The two people have greater latitude to create a settlement agreement that works for both. The lawyers at Samuelson Hause PLLC can help you navigate the sensitive issues, see potential solutions, and start again on solid ground.

If you are considering divorce in New York, contact us for a free initial consultation. Ask us questions and make sure we are a good fit for you and your case. Call to (516) 584-4685 schedule.