When tackling Spousal Maintenance during a divorce there are really two distinct components to be resolved: 1) Temporary Spousal Maintenance during the pendency of the divorce action; and 2) an order of Spousal Maintenance at the conclusion of the divorce action.
TEMPORARY SPOUSAL MAINTENANCE
In 2010 the New York State Legislature recognized that during a divorce action, one party is frequently at a financial disadvantage. In other words, one spouse has money or has the means to generate money and the other spouse cannot do so at the same level. Because the financial playing field was often not equal, the monied spouse would often prolong litigation with the goal of making it financially impossible for the non-monied spouse to seek his or her fair day in court. Temporary maintenance, which is the spousal support paid while the divorce action is pending , is now determined by a combination of two of mathematical formulas. Once the numbers are crunched, the court uses the lower of the two results as the presumptively correct temporary maintenance amount. The first mathematical formula subtracts twenty percent of the payee spouse’s income from 30% of the payor spouse’s income (up to the $524,000 income cap). The second formula subtracts the payee spouse’s income from 40% of the sum of both spouse’s income. Whichever result is the lowest, becomes the “presumptively correct” temporary maintenance award. This presumptively correct temporary spousal support award can be altered in any given case, where using one or more statutory factors the court finds it to be “unjust or inappropriate.”
SPOUSAL MAINTENANCE AT THE CONCLUSION OF THE DIVORCE ACTION
Spousal Maintenance granted at the conclusion of the Divorce Action differs from that Temporary Spousal Maintenance granted during the pendency of the action. Unlike the mathematical formula devised by the New York State Legislature applicable to Temporary Maintenance, no such formula exists for Spousal Maintenance that may or may not be ordered at the conclusion of the divorce action. Instead the Court may consider twenty (20) factors in when reaching its decision as to the amount and duration of maintenance for either husband or wife.
In determining the amount and duration of maintenance the Court shall consider:
The income and property of the respective parties including the distribution of marital property;
The length of the marriage;
The age and health of both parties;
The present and future earning capacity of both parties;
The need of one party to incur education or training expenses;
The existence and duration of a 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;
The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
The presence of children of the marriage in the respective homes of the parties;
The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity;
The inability of one party to obtain meaningful employment due to age or absence from the workforce;
The need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
The tax consequences to each party;
The equitable distribution of marital property; Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
The wasteful dissipation of marital property by either spouse;
The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
The loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
Any other factor which the court shall expressly find to be just and proper.
The Guttmann & Kellner P.C,difference
Our family law attorneys at Guttmann & Kellner P.C. have three decades of trial experience. We are skilled in negotiation however it takes two parties to make a deal. If the adverse parent refuses to be reasonable then you can count on our experience as Trial Attorneys to be by your side.