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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.

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Must I pay maintenance when I am over the age of retirement?
June 5, 2020

In a matter recently decided by the appellate division second department, located in Brooklyn, the appellate division reversed the trial court decision in part and held that there was no reason to award the plaintive wife maintenance.  The citation for the case is ACHUTHAN versus  ACHUTHAN 202, NY slip app 00255, decided this year on January 15, 2020. 

In that case, the court reversed the trial court decision awarding the wife maintenance. The appellate division reversed the decision because in part the husband was 80 years old and the wife was 71 years old. Another reason why the appellate division reversed the lower court decision in part was because the marital portion of the retirement account for the wife was increased by $800,000 by the appellate division’s decision from the award stipulated to by the parties at the time of the trial. 

In my view, the higher court that due to the large award of equitable distribution there was no basis to award spousal maintenance. This case was based on a filing for divorce prior to year 2016, which required the courts to consider many factors in determining maintenance. Subsequent to 2016, the courts generally follow the presumptively correct spousal maintenance amount awarded under the New York guidelines.

As in for equitable distribution, while the courts have an extreme amount of discretion in awarding distribution of marital assets, in this decision the appellate court self that a 51/49 percent split between the parties was unfair and next modified the lower court decision. In making adjustments to the award, to reflect a 50-50 split of marital assets, the court sided to the case of Spencer Dash Forest versus Forest, 159/83 at page 764.

 

In my opinion, while the court has a lot of discretion to make a distributive award , usually the lower court’s decision will not be disturbed. However, in this case it is interesting that the higher Court made this adjustment for two reasons.  First this was a long-term marriage of 33 years. So, on the facts, the distributive award in my opinion should have been 50-50.   Secondly, my take away from this decision is that this decision indicates that the courts are more and more likely to award 50% of the marital assets to the parties and that, apart from distribution of business entities,  this should be a starting point in negotiations.

 

By: Lisa Beth Older Esquire, your Manhattan divorce lawyer.