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Property DivisionSpousal MaintenanceNew York Maintenance Laws To Change: How Will Post Divorce Maintenance Be Determined?

May 23, 2013

The laws governing spousal maintenance in New York may be soon be changing.   

The Law Revision Commission issued a recommendation that New York adopt a formula to determine not only temporary maintenance, but post divorce maintenance as well.

Presently, New York courts only use a formula to award temporary maintenance.    Post divorce maintenance is generally based on consideration of a number of statutory factors.    

According to the recommendation, the maintenance formula would apply to the first $136,000 of income.    Courts would have discretion to vary from the guidelines if the award was unjust, inequitable or when the combined income exceeds $136,000.

In addition to announcing the maintenance formula, the Law Revision Committee suggested:

  • Abandoning the theory of “enhanced earning capacity”  which enabled a spouse make a claim for equitable distribution whenever the other obtained a professional license or educational degree.  New York is the only state that allows distributes an enhanced earning capacity.
  • Limiting the duration of temporary maintenance awards so that maintenance awards do not exceed the length of the marriage.
  • Fixing the duration of any post divorce maintenance award so as to be based on the length of the marriage, the time required for the non-monied spouse to acquire sufficient education or training to find appropriate employment, and  the age of the non-monied spouse. 

We will have to wait to see what provisions, if any,  of the committee’s recommendations are enacted into law.    Stay tuned!


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