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.

Seeing Isn’t Always Believing

March 12th, 2016

A shift in perspective can reveal the truth

By Barbara Badolato, LCSW

Family In ParkWhen we know someone very well, we often assume we also know the motives behind his or her actions.  This tendency to make assumptions about the cause of another’s behavior can be a roadblock to co-parenting.

Consider this story by an anonymous author.

A little girl was going for a walk in the park with her mother. Knowing she would get hungry after an afternoon on the swings, slides and in the sandbox, she placed two shiny red apples in a brown paper sack.

The pair went to the park, and the girl had a wonderful time. Before heading home, mother and daughter sat on a park bench to have their snacks.

The girl opened the sack and removed both apples. The mother said, “I’d like an apple, please.” The daughter looked up at her mother, smiled, and proceeded to take a bite of each one.

The mother was flabbergasted. Just as she was about to express her displeasure, the little girl offered one of the apples to her mother, saying, “Take this apple; it’s the sweeter one.”

This simple tale illustrates the notion that perception and perspective can color our ability to discern the truth about a situation. We often cannot know what another is thinking, no matter how well we might know someone.

Similarly, husbands and wives, operating from past hurts and experiences, might not know what the truth really is. For example, when the children are staying with Mother, their bedtime is 8 pm. When they stay with Father, however, their bedtime is 9. The mother may assume her ex-husband is purposely undermining her rules and her authority. In reality, the father may be telling his children that although they are permitted to go to bed later at his house, it is only because they don’t have to wake up for school the next morning. He also may warn them that they must not argue with Mother about their 8 pm bedtime, and if they do, their bedtime will become 8 pm at his house as well.

Human nature causes us to judge what one hears or sees according to how one feels in the moment. Since that judgment can be faulty, it’s always a good idea to ask for clarification whenever your former spouse does or says something that appears to contradict the co-parenting strategies you put in place.

In this way, you both can stay on the same page – remaining strong parents your children can rely on, even if you aren’t still married.

Running a Business After Divorce

February 17th, 2016
Store Owner Turning Open Sign In Shop Doorway
Splitting up is challenging for every couple, but when that couple owns a business together, the challenges increase exponentially.
Just because a life partnership ends, a business partnership doesn’t have to.
The Wall Street Journal published this article on how a business can survive, and even thrive, despite its owners’ divorce.

When New Year’s Resolutions Include Divorce

January 5th, 2016

7 Tips Before Saying ‘I Don’t’

New Start sign with sky backgroundBy Barbara Badolato, LCSW

Every January brings a big jump in divorce filings.  Whether the holidays highlight huge holes in a marriage or the end of a tax year signals a time to start a fresh financial future, couples on the fence in December seem to agree the New Year is a time for new beginnings.

Barbara Badolato, LCSW and director of mediation services at Divorce Mediation Professionals, offers these 7 tips for couples who choose to part ways in 2016.

1. Spend time getting smart about your financial situation. Learn where the records and statements are kept, and review them. Knowledge is power. This step makes it easier to prepare a realistic budget that will include expenses for two separate households.

2. Cultivate a support system. In addition to finding a therapist, many couples find it helpful to engage the services of a divorce counselor and a divorce financial planner.

3. Research the various methods of getting a divorce. Consider a process that takes your children’s emotional well-being into account. Divorces shouldn’t leave both parties destitute and exhausted. Many couples find mediation a saner, quicker alternative to a contested, adversarial divorce.

4. Discuss with your partner how and when you will tell your children. Ideally, you do it together.

5. Stay focused on looking forward. Using your divorce as an opportunity to right all the wrongs in your marriage, to get revenge for past hurts, will only delay your own healing and your ability to move on.

6. Manage your own expectations. Most times, it will not be possible to sustain the same lifestyle as you did when you were married. Maintaining two separate households is substantially more expensive than maintaining one.

7.  Be careful whom you listen to. Well-meaning friends and relatives will be quick to offer unsolicited advice, but they cannot know your specific situation and the information they offer may do more harm than good.

5 Mediation Misconceptions

December 15th, 2015

By Barbara Badolato, LCSW

In my 30-plus years of mediating divorces, I have heard just about every incorrect assumption regarding mediation. A few, however, are so prevalent, that I feel it’s time to set the record straight.

Following are five misconceptions I have heard frequently over the years, along with a description of how divorce mediation really works.

1. Collaboration, arbitration and mediation are different words for the same process.

With collaborative divorce, both spouses hire attorneys to represent them and agree to stay out of court. The attorneys negotiate the divorce through a series of four-way meetings (each spouse and his/her respective attorney). Often, other professionals, such as accountants or appraisers, provide assistance.

Although the terms “mediator” and “arbitrator” are sometimes erroneously used interchangeably, they are not the same. An arbitrator listens to both sides and then makes a binding decision.

A mediator has no power over the decisions. Working with a mediator gives you more, not less, control over your agreement and the corresponding issues such as parenting, division of assets, what to do with the house, etc. At any time, one spouse can disagree with any aspect of a decision being developed and, with the help of the mediator, continue to search for alternatives. The benefits are significant cost and time savings, as well as preserved relationships between parents and children.

2. It’s impossible to negotiate with my unreasonable spouse.

It’s natural to feel angry and resentful, especially if you feel you have been mistreated and/or lied to. Despite this, mediators are trained to develop an atmosphere of open communication so that both of your concerns are heard and addressed, and the resulting decisions reflect those concerns.

It may not appear to be so, but both of you want the same thing – a peaceful, effective end to the marriage, with an agreement in place that both of you can live with for the long term. And successfully working out the terms of your divorce, together, sets the stage for a non-adversarial relationship after the end of your marriage, which helps you both move on and makes you better able to co-parent your children.

3. I will end up with a better/more lucrative agreement if I hire my own attorney and engage in a traditional, contested divorce.

Litigated divorces accomplish one thing every time: The process enriches attorneys at the expense of the separating spouses. And although people entering into a litigated divorce often do so hoping to “win” against their former spouse, no one really wins.

Contested divorces fail to encourage the spirit of openness necessary to reveal personal information – assets, income and debt – as well as personal wants – such as whether they would like to remain in the home, how the children should split their time between the two parents, etc.

The desire to win at all costs leaves the ex-spouses in no position to continue to co-parent their children, as they often can barely speak to one another.

It would be far better to take the money you would have spent on two separate, expensive litigators and fund your children’s college education instead.

4. If I choose to mediate, I don’t need to use an attorney.

Whether amicable or adversarial, divorce is still a legal process. Although a trained mediator can help you come to agreement on seemingly insurmountable differences of opinion, you need an attorney to draft a legally binding separation agreement and subsequent divorce agreement.

Only family law attorneys know the law. Using one makes sure the agreement you arrive at complies with the law. And attorneys understand the process of filing all the legal papers necessary for the divorce to become final. This can include court orders such as a Qualified Domestic Relations Order, which allows one of the former spouses to share in the other’s retirement benefits.

5. Once my divorce is finalized, I won’t have to deal with my ex-spouse again.

Once you’ve made the decision to end your marriage, it can be calming to contemplate a time when you will never have to talk to your husband or wife again. Realistically speaking, however, there will be times when you will need to renegotiate the terms of your divorce.

If one of you loses a job, for example, that could impact your ability to make the agreed-upon child and spousal support payments. If you have children, you will want to discuss college plans with your former spouse.

Mediation lays the groundwork for being able to communicate effectively and even disagree productively. So when these thorny issues arise, as they must, you will have the tools to come to agreement and move forward.