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New York State Overhauls Spousal Maintenance Formula
New York State Overhauls Spousal Maintenance Formula
By: Amy B. Egitton
Gov. Andrew Cuomo has signed into law a bill that has revised the current maintenance law in New York State. A summary of key provisions of the new legislation, as it relates to maintenance, is as follows:
- The statute establishes an income cap to be used for the calculation of temporary maintenance and permanent maintenance at $175,000 of the payor’s income. The previous cap, which applied only to temporary maintenance, was $543,000 of the payor’s income. This is a significant change and will greatly impact future maintenance awards. The new cap is more in line with the cap that is used for the calculation of child support.
- The statute provides for two sets of formulas in the calculation of maintenance. The first set of formulas is used when the payor’s income is at or below the cap. Within that scenario is a formula for when the payor is also paying child support and the other for when the payor is not paying child support. The other set of formulas is used when the payor’s income is above the cap. This second scenario uses the calculation for maintenance with income at or below the cap and then applies a series of deviation factors that the court can apply to income above the cap in its calculation.
- In determining temporary maintenance, the court shall consider the parties’ responsibility for payment of family expenses during the pendency of the proceeding.
- Temporary maintenance shall be calculated prior to child support because the amount of temporary maintenance shall be subtracted from the payor’s income as part of the child support calculation.
- Temporary maintenance shall terminate no later than the issuance of a judgment of divorce or the death of either party.
- In determining permanent maintenance, the statute provides that income from property distributed to each party be considered.
- The statute provides for an advisory schedule for the court for determination of the duration of the maintenance obligation which is based on the term of the marriage. Term of the marriage is defined as date of marriage until date of commencement of the divorce action. The court shall take into account retirement assets and retirement age, if ascertainable. If not ascertainable, the full or partial retirement of the payor with a significant reduction in income shall be a basis for modification. The statute does not prevent the court from awarding non-duration maintenance. Whether or not the court uses the advisory schedule, the court must state what deviation factors it considered.
The portion of the statute that pertains to temporary maintenance will be effective October 26, 2015 and the portion of the statute referencing permanent maintenance will take effect on January 25, 2016. If you have any additional questions, please feel free to contact me.
