Prior to the enactment of gender neutral support laws
in 1980, the husband was charged with the primary
obligation to support his wife. This obligation arose out
of the marriage contract and the relationship it created,
and was in direct proportion to the husband's station and
position in life. However, the wife's misconduct,
constituting grounds for divorce or separation, was a
defense to an award of alimony. Until the 1970's alimony
was a substitute for the rights of the innocent wife,
which the divorce cut off, and was in the nature of a
penalty imposed on the guilty husband for a violation of
his marriage vows and obligations.
In the late 1970s, the United States Supreme Court held
unconstitutional an Alabama statute that provided that
husband's, but not wives, may be required to pay alimony
upon divorce. As a result of the decision, the courts of
the State of New York read the New York alimony statute to
be gender neutral.
Alimony was designed to reach a portion of the
husband's estate or income in order to satisfy the support
obligation he assumed by marriage, and also reflected
numerous other factors, including perhaps the failure of
New York Matrimonial Property Law to effect economic
justice between the parties in the days prior to the
enactment of the equitable distribution law. Although is
difficult to generalize, ordinarily an award of permanent
alimony, where possible, reflected an amount which enabled
the wife or former wife to maintain her accustomed social
and economic status until her death or remarriage.
In 1980 New York Domestic Relations Law was amended, as
part of the enactment of the Equitable Distribution Law so
as to provide for "maintenance" instead of "alimony" to be
awarded in all actions or proceedings commenced on or
after July 19, 1980.
The law defined "maintenance" as "payments...for a
definite or indefinite period of time, to meet the
reasonable needs of a party to the matrimonial action...."
Maintenance served a new function, and was based on
principles different from those underlying the old law.
The objective of the maintenance provision was to award
the recipient spouse an opportunity to achieve
independence, recognizing that in marriages of long
duration, or where the former spouse is, and has been, out
of the labor market and lacks sufficient resources, or has
sacrificed her business or professional career to serve as
a parent and homemaker, "maintenance" on a permanent basis
would be necessary.
The main difference, aside from duration, is that in
theory, alimony was awarded in order to help maintain the
wife's prior standard of living. Originally, 10 factors
were set forth as criteria to be weighed by the court in
awarding maintenance, including marital property
distributed to the parties as part of the equitable
distribution of marital property pursuant to a judgment of
divorce, and the wasteful dissipation of marital property
by either spouse. It is important to note that both of
these factors can only be considered if there is a
dissolution of the marriage.
The maintenance provisions of the statute were amended
in 1986. The purpose of the amendment was to alleviate the
adverse economic consequences which have befallen women
under the maintenance provisions of the Domestic Relations
Law which were being interpreted by the courts to preclude
awards of permanent maintenance for older homemakers in
marriages of long duration, homemakers with responsibility
for minor children and homemakers who have sacrificed
employment opportunities to priority to family needs.
The 1986 amendment removed the "standard of living"
where "practical and relevant" from the list of 10 factors
and substituted "standard of living of the parties
established during the marriage" for "reasonable needs",
creating a new basis for the award of maintenance. The
standard of living established during the marriage became
the objective the court should try to reach in determining
"whether the party in whose favor maintenance is granted
lacks sufficient property and income to provide for his or
her reasonable needs" and whether the other party has
sufficient property or income to provide for the
reasonable needs of the other.
It also added as a factor "any transfer or encumbrance
made in contemplation of a matrimonial action without fair
consideration, another factor based upon an action which
may result in a dissolution of the marriage.
Interestingly, (or inadvertently) the legislature
carried over the authority of the Supreme Court to make a
direction for maintenance "notwithstanding that the
parties continue to reside in the same abode and
notwithstanding that the court refuses to grant the relief
requested by either party.
