By Sherri Donovan, Esq.
A permanent maintenance formula will come into effect in New York this year for the first time. On June 24, 2015, the New York State Senate passed a bill that will bring a number of revisions to the Domestic Relations Laws regarding the spousal support. The New York State Assembly passed this same bill on June 15, 2015, the previous week. It is widely expected that Governor Cuomo will sign this bill, which has support from several prominent legal organizations such as the New York State Bar Association and the Women’s Bar Association of the State of New York into law before the end of the year.
One change is that the current temporary maintenance law and formula, in effect since 2010, will be replaced with a new temporary maintenance formula. Now, there will be two different computational maintenance formulas. One formula is that in which child support will be paid and in which the temporary or post-divorce maintenance payor is also the non-custodial parent for child support purposes. The other formula is that in which child support will not be paid, or where it will be paid but the temporary or post-divorce maintenance payor is the custodial parent for child support purposes.
Notably, the numeric maintenance formulas will now be brought to post-divorce maintenance calculations. For instance, the changes to the maintenance formulas provide specifically for interaction between maintenance formulas and child support computations. In particular, when child support is to be paid in addition to temporary and/or post-divorce maintenance, under the new law, 25% of the maintenance payee’s income will be subtracted from 20% of the maintenance payor’s income. Then, the total of the maintenance payor’s income and the maintenance payee’s income will be multiplied by 40%, and the maintenance payee’s income will be subtracted from the result. In the alternative, when there is no child support awarded, or when the maintenance payor is the custodial parent for purposes of child support, 20% of the maintenance payee’s income will be subtracted from 30% of the maintenance payor’s income. Then, the total of the maintenance payor’s income and the maintenance payee’s income will be multiplied by 40%, and the maintenance payee’s income will be subtracted from the result. The lower sum of these two formula calculations will be the guideline amount of maintenance.
The new permanent maintenance legislation provides for an advisory schedule for the duration of the maintenance award. The durational periods now have ranges to afford courts discretion. The advisory durational periods are (a) marriages of 0-15 years’ duration (maintenance payable for 15%-30% of the length of the marriage), (b) marriages of 15-20 years’ duration (maintenance payable for 30%-40% of the length of the marriage), and (c) marriages of over 20 years’ duration (maintenance payable for 35%-50% of the length of the marriage). However, a court can still award non-durational, lifetime maintenance in an appropriate case. In order to determine the duration of maintenance, a court is required to consider anticipated retirement assets, and retirement eligibility age.
The income cap for temporary maintenance awards has been lowered from $543,000 to $175,000 of the payor’s income. The new cap of $175,000 also applies to post-divorce maintenance awards. Income is explicitly defined as income under the Child Support Standards Act and under DRL § 240. The new law preserves a judge’s rights to deviate from the guidelines when the amount of maintenance would be unjust or inappropriate. The new law also provides the court with discretion to allocate the responsibility for payment of specific family expenses between the parties in such percentage as the court deems equitable. A court must list the factors that it has considered in writing in its decision when deviating, and its rationale.
A court may consider the following factors when deviating from the new maintenance guidelines: the age and health of the parties, the parties’ earning capacity, the need for a party to incur educational or training expenses, the wasteful dissipation of marital assets, and the availability and costs of medical insurance, the termination of a child support award, the existence and duration of a pre-marital joint household, actions by a spouse that inhibited the other spouse’s earning capacity or ability to obtain meaningful employment, the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws, the tax consequences to each spouse, the parties’ established standard of living during the marriage, the reduced or lost earning capacity of the payee due to foregoing or delaying educational or career opportunities during the marriage, the equitable distribution of marital property and the income or imputed income on the assets so distributed, and the contributions of the payee as a spouse, and parent.
A spouse’s professional degree and professional licenses earned during the marriage will no longer be treated as a marital asset, pursuant to the new legislation. The provisions of the bill regarding post-divorce maintenance and spousal support guidelines are effective 120 days after signature by Governor Cuomo and is applicable to both matrimonial and family court actions commenced thereafter. The provisions of the bill involving temporary maintenance become effective 30 days after signature by Governor Cuomo.