During the divorce process, a lesser-earning spouse can typically request temporary spousal support subject to certain rules. However, if your spouse is capable of earning more money but is underemployed or unemployed, should you still have to pay spousal support?
New York Spousal Support Rules
Generally, temporary support will be granted in an amount consistent with the marital lifestyle. This amount may be different than what is ultimately awarded upon divorce or separation because the parties haven’t yet disclosed all their financial information at this stage.
Both interim and final orders of support are calculated based on a statutory formula. The length of support depends on the duration of the marriage.
The formula does take into account a spouse who may not be employed full-time at the time of the divorce. For example, if the lesser-earning spouse has caregiving responsibilities, the final support award may provide that the payor-spouse pay childcare expenses so the custodial parent can obtain an education and training. The court may also lengthen the duration of support for a spouse who has been out of the workforce for a long time and needs extra time to become self-supporting provided the court’s determination is within the statutory framework.
Importantly, the court will expect the lesser-earning spouse to become self-supporting at some point. How long support will be continued is a fact-specific inquiry.
Spousal Support for a Spouse Who Refuses to Work or Is Underemployed
During the divorce, if a court issues a support order, it is best for the payor-spouse to abide by it as courts generally view settlement as the best way to resolve what the payor-spouse views as an unfair support order.
With this said, if the recipient spouse refuses to become self-supporting or become fully employed, the payor-spouse should request that the court appoint a vocational evaluation expert. The expert’s role is to assess the spouse’s education and skillset, in addition to assessing the market for those skills, to determine the spouse’s employability and earning capacity. While the payor-spouse may be required to pay support, the duration of support may be substantially shortened if not eliminated if the recipient spouse is unwilling to become self-supporting to their potential.
If you are considering divorce, it is important to have an experienced attorney to advocate for your rights. Contact us to learn how we can help you achieve a positive result in your case.
