Let’s imagine a world where you never got a prenup. This world would be full of lengthy court processes, interspousal arguments, and judges making life decisions for you. That’s exactly what you can expect if you do not have a prenup in place and you can’t agree on what to do about alimony! Without a prenup, a New York judge will use a statutory calculator and some discretion to determine how much and when alimony should be paid.

Types of Alimony under New York Law

In New York and sans prenup, calculating the amount and length of time for alimony payments are done via mathematical equation and court discretion based upon a variety of factors.

You may be eligible to pay or receive temporary alimony and/or post-divorce alimony. Temporary alimony is paid to a spouse during the divorce proceedings, and either ends when the divorce is final or continues post-divorce. It is known as pendente lite support. Post-divorce alimony is payment made to one spouse from the other after the divorce is final.

For the amount of temporary alimony, the calculator considers each spouse’s income and whether the spouse paying alimony will also pay child support; the court will also utilize its discretion as to the amount.

For post-divorce alimony, New York judges will use a formula to determine the amount and length of time of support that must be paid. This equation considers the following:

• Each spouse’s income,

• Whether the spouse paying alimony will also pay child support,

• The length of time the spouses were married.

A New York judge may increase or decrease the calculation’s suggested alimony amount using the following factors:

• The age and health of the spouses,

• The present or future earning capacity of the spouses,

• The need of one spouse to incur education or training expenses,

• Whether a child support award affects the amount of alimony,

• The wasteful use of marital property or unfair transfers of marital property,

• The existence and duration of a pre-marital joint household or a pre-divorce separate household,

• The acts by one spouse against another that have inhibited or continue to inhibit a spouse’s earning capacity or ability to obtain meaningful employment, such as domestic violence,

• The availability and cost of medical insurance,

• The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a spouse’s earning capacity,

• The tax consequences to each spouse,

• The standard of living established during the marriage,

• The reduced or lost earning capacity of the payee as a result of giving up or delaying education or career opportunities during the marriage,

• The equitable distribution of marital property and the income the spouse might receive from the property,

• The contributions and services of the spouse receiving support to the household or career of the spouse paying support, and

• Any other factor the court declares just and proper to consider.

N.Y. Dom. Rel. Law § 236(6)(e)(1)

New York is an equitable division state, meaning the judges will split up property in a “fair” way according to a set of factors written in a New York statute (N.Y. Dom. Rel. § 236). What is “fair” is not necessarily 50/50. Equitable does not necessarily mean equal. This means that the judges overseeing your case may give one spouse more than the other based on the circumstances. For instance, if one spouse is in poor health and the other is not, the judge may choose to give the spouse with healthcare needs more to make it a fair outcome.

Determining Child Custody

Without a prenup, child custody will be determined by a judge or agreement by you and your co-parent. Child custody is always determined by trying to put the child’s best interests at the forefront. The court will make a custody decision based on the “best interest of the child” test by looking at the circumstances as a whole. Judges typically rely on certain factors to help weigh out the child’s best interests, including but not limited to the following:

• The parents’ stability

• How long the child has been residing with either parent

• The child’s preferences

• The child’s relationship with siblings and other family members

• History of parental performance

• Willingness to foster a good relationship with the other parent

• Whether the child has any special needs

• And many more (all related to the well-being of the child)

Determining Child Support

Without a prenup in place, child support is calculated by using a formula that is laid out in the statute and at the Court’s discretion. Typically, the calculation considers both parents’ annual income and the number of children. The income from both parents is multiplied by a percentage. The percentages attached to the number of children (“child support percentage”) are:

• 17% of combined income for one child

• 25% of combined income for two children

• 29% of combined income for three children

• 31% of combined income for four children, and

• No less than 35% of combined income for five or more children.

For example, let’s say you have one child, and both parents make $50,000 annually before deductions for a combined income of $100,000. This means the estimated annual child support amount should be around $17,000.

N.Y. Dom. Rel. § 240