New Law Affects Divorcing Couples

May 28th, 2016

State sets spousal support guidelines

By Maren Cardillo, Esq.

Judges Gavel, Soundboard And Bundle Of Money On The Table
Early this year, the New York State Legislature enacted a law that provides guidelines for determining spousal support (or “maintenance,” as it is called in New York) in cases of divorce. Under these maintenance guidelines, calculations are made by applying mathematical formulas to the incomes of the two parties in order to arrive at the amount of support, if any, that is to be paid by one party to the other in a particular case. Generally speaking, maintenance is awarded if one spouse has significantly more income than the other.

In mediated or negotiated agreements, parties are not required to adhere to the maintenance guidelines so long as they can agree on their own upon the amount and duration of the payments. If they cannot agree and they go to court, a judge would then apply the guidelines to determine the amount of maintenance to be paid in their case.

Maintenance Amount

Depending upon whether or not child support will also be paid in a particular case, one of two maintenance formulas is applied to the parties’ incomes to arrive at the dollar amount of the maintenance award.

Formula Where the Maintenance Payor Is Also the Non-Custodial Parent Paying Child Support to the Recipient Spouse

First, make the following computation:
1. Calculate 20% if the Payor’s Income up to the cap
2. Calculate 25% of the Payee’s Income
3. Calculate Line 1 less Line 2

Second, make the following computation:
4. Add the Payor’s income up to the cap and the Payee’s income
5. Multiply the amount calculated in Line 4 by 40%
6. Subtract the Payee’s income from the amount calculated in Line 5
7. The Guideline amount is the lesser of Line 3 or Line 6

Formula Where No Child Support Is Being Paid By the Maintenance Payor to the Recipient Spouse

First, make the following computation:
1. Calculate 30% if the Payor’s Income up to the cap
2. Calculate 20% of the Payee’s Income
3. Calculate Line 1 less Line 2

Second, make the following computation:
4. Add the Payor’s income up to the cap and the Payee’s income
5. Multiply the amount calculated in Line 4 by 40%
6. Subtract the Payee’s income from the amount calculated in Line 5
7. The Guideline amount is the lesser of Line 3 or Line 6

As formulated, the maintenance guidelines are to be applied only to the first $178,000 of the payor’s income. Note, however, that although a court will award the amount of maintenance in accordance with the applicable formula, it will deviate from that award if it finds the amount generated by the formula to be “unjust or inappropriate” after consideration of the 15 “deviation factors” enumerated in the guidelines. In such circumstance, the court might then take into account income in excess of $178,000 which the payor earns in calculating the amount of maintenance. The court might also take into account other information in the case that the court considers relevant under the deviation factors.

Deviation Factors

1. The age and health of the parties;
2. the present or future earning capacity of the parties, including a history of limited participation in the workforce;
3. the need of one party to incur education or training expenses;
4. the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
5. the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
6. the existence and duration of a pre-marital joint household or a pre-divorce separate household;
7. acts by one party against the other 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;
8. the availability and cost of medical insurance for the parties;
9. the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
10. the tax consequences to each party;
11. the standard of living of the parties established during the marriage;
12. the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
13. the equitable distribution of marital property and the income or imputed income on the assets so distributed;
14. the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
15. any other factor which the court shall expressly find to be just and proper.

Maintenance Duration

Also contained in the new law are “advisory guidelines” pertaining to the duration of the maintenance award in a particular case; i.e. how long the payments shall continue. These guidelines are based upon the length of the marriage, which is defined as running from the marriage date to the date the divorce action was started.

Length of Marriage                 Award Duration
0 to 15 years                          15%-30% of the marriage’s length
More than 15 to 20 years        30%-40% of the marriage’s length
More than 20 Years                35%-50% of the marriage’s length

As this schedule is “advisory” only, it is within the court’s discretion either to consider or to disregard the lengths that are suggested. Moreover, under the new law, the court has the right to award what is termed “non-durational” maintenance; i.e. maintenance which continues indefinitely and which terminates only upon the remarriage of the recipient or the death of either of the parties.

Mediation and Role of the Maintenance Guidelines

While the new guidelines may give separating and divorcing couples a broad idea of what maintenance, if any, would be award by a judge should they go to court, couples who choose to mediate or negotiate their own agreements are not bound by these maintenance guidelines. This is fortunate, because each family and situation is unique, and often the maintenance guidelines do not provide appropriate or workable solutions for a particular family. In some cases, the support payments generated by the formulas fail to meet the financial needs of one spouse or the other. In some cases, the resulting amounts conflict with the values, goals and consideration that are important to the family.

As mediators, it is our responsibility to assist you in arriving at support figures that are workable for the two of you as individuals as well as for your family as a whole.

We have prepared a packet of information on the support guidelines and would be happy to share it with you. Simply call our office to receive your copy.

Tags: , ,