Temporary Spousal Maintenance in New York

With the passage of the “no fault” divorce, New York has also set new guidelines for the computation of temporary spousal maintenance. The new formula approach provides an easy method for determining the amount of temporary maintenance for the less-monied spouse (payee). However, this approach is only applicable is the payee’s income is less than two thirds of the other spouse’s income (payor). For example, if the more-monied spouse’s income is $60,000.00 a year, the formula approach will only apply if the less-monied spouse’s income is less than $20,000.00 a year. The concept is similar to that of state child support guidelines, but not entirely.

 Thus in order to compute temporary maintenance, the income of both souses must first be determined. Once the respective incomes are ascertained, the guideline amount of temporary maintenance is calculated using two calculations as follows:

(1) Take 30% of the payor’s income (capped at $540,000.00), then subtract 20% of the payee’s income, and note the result

(2) Add the sum of the payor’s income (up to $540,000.00) and the payee’s income together, then calculate 40% of that sum, from that subtract the payee’s income, and note the result.

The result of the first calculation is compared to the results of the second calculation. The guideline amount of temporary maintenance shall be the lower of the amounts determined by the first and second calculations. If the amount determined by the second calculation is less than or equal to zero, the guideline amount shall be $0.

In the event that the payor’s income exceeds the allowable income cap of $540,000.00, the court shall determine any additional guideline amount of temporary maintenance through consideration of the following 19 factors:

1. The length of the marriage;

2. The substantial differences in the incomes of the parties;

3. The standard of living of the parties established during the marriage;

4. The age and health of the parties;

5. The present and future earning capacity of the parties;

6. The need of one party to incur education or training expenses;

7. The wasteful dissipation of marital property;

8. The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

9. The existence and duration of a pre-marital joint household or a pre-divorce separate household;

10. Acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;

11. The availability and cost of medical insurance for the parties;

12. The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;

13. The inability of one party to obtain meaningful employment due to age or absence from the workforce;

14. The need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;

15. The tax consequences to each party;

16. Marital property subject to distribution pursuant to subdivision five of this part;

17.The reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;

18. The contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

19. Any other factor which the court shall expressly find to be just and proper.

Further, the court may adjust the award of temporary maintenance if the court finds that the award is unjust or inappropriate based on consideration of the following 17 factors:

1. The standard of living of the parties established during the marriage;

2. The age and health of the parties;

3. The earning capacity of the parties;

4. The need of one party to incur education or training expenses;

5. The wasteful dissipation of marital property;

6. The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

7. The existence and duration of a pre-marital joint household or a pre-divorce separate household;

8. Acts by one Party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;

9. The availability and cost of medical insurance for the parties;

10. The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;

11. The inability of one party to obtain meaningful employment due to age or absence from the workforce;

12. The need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care or medical treatment;

13. The tax consequences to each party;

14. Marital property subject to distribution pursuant to subdivision five above

15. The reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;

16. The contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

17. Any other factor which the court shall expressly find to be just and proper.