In a recent article, the NY Post needlessly scared spouses contemplating divorce, but who had not yet commenced their cases. The gist of the article was that if they wait until the new maintenance guidelines become effective next month, they will receive less spousal support in their divorce than if they file now.
In 2010, New York enacted guidelines to calculate temporary maintenance based on a mathematical formula, capped on the first $543,000 of income. The law was recently revised:
- to apply to both temporary and post-judgment maintenance,
- to change the formula to account for child support payments, and
- to lower the cap to $175,000.
The aspect of the law dealing with temporary or pendente lite maintenance already became effective. The law addressing maintenance after the divorce becomes effective in January 2016.
The Post article urged that the failure to file for divorce now could result in a difference of $ 9,500 per month in maintenance – 30% of the difference in the old cap and the new cap. But this misses the point. First, the higher cap was not intended to be used to calculate post-judgment maintenance, but only temporary maintenance.
Second, the cap does not mean income in excess of $175,000 will not be considered for the payment of maintenance. The revised statute specifically provides for 13 factors to be considered for income in excess of the $175,000 cap. The statutory factors include:
- the age and health of the parties;
- the present or future earning capacity of the parties, including a history of limited participation in the workforce;
- the need of one party to incur education or training expenses;
- the termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;
- the wasteful dissipation of marital property, including transfers or emcumbrances made in contemplation of a matrimonial action without fair consideration;
- the existence and duration of pre‐marital joint household or a pre‐divorce separate household;
- 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;
- the availability and cost of medical insurance for the parties;
- the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in‐laws provided during the marriage the inhibits a party's earning capacity;
- the tax consequences to each party;
- the standard of living of the parties established during the marriage;
- 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; and
- any other factor which the court shall expressly find to be just and proper.
In fact, it would be naïve to think that a New York City divorce court would not, as the Post suggests, consider, income in excess of the $175,000 cap, particularly, in cases where one spouse has a high income and the other has no income.
While a formulistic approach of the calculation of maintenance is not desirable, the new law, which takes the payment of child support and other non-mathematic factors into account, will probably lead to fairer maintenance awards for all involved.