Spousal Maintenance in New York
How Are Temporary Support Awards for a Spouse Determined?
Effective October 13, 2010, New York has a new formula for determining the amount of temporary spousal maintenance to be paid. Temporary maintenance is support paid by the higher income spouse to the lower income spouse during the time that a divorce case is pending. The new law does not apply to “spousal support” ordered by the Family Court under FCA §412, which is to be “a fair and reasonable sum ... having due regard to the circumstances of the respective parties”; however the Family Court is likely to turn to the divorce court guidelines in setting their pre-divorce support orders. Temporary maintenance terminates upon the issuance of a final award of maintenance. Family Court orders terminate when the divorce court makes an order. Also, the new law provides for a presumption that counsel fees should be awarded to the “less monied spouse” so as to enable representation at the commencement of the action.
Income available for spousal support is defined in the same way as income under child support laws. In addition to earnings reported on the most recent federal income tax form, income includes worker’s compensation, disability benefits, unemployment benefits, Social Security, veteran’s benefits, pension and retirement benefits, fellowships and stipends and annuity payments, as well as investment income. The court may also include income from other sources such as non-income producing assets, employment perquisites (“perks”) , and goods and services furnished by friends and relatives. The court can "impute income" to someone who has reduced their income by choice, or if the court believes the spouse is not being truthful about his or her true finances.
Certain deductions from income are allowed, including other child support, alimony or maintenance actually paid, non-reimbursed business expenses, public assistance, supplemental security income, NYC or Yonkers income taxes, and FICA taxes. Also, there is an income cap of $500,000 a year of the payor’s income, which will be adjusted by the CPI every two years. Special rules apply to couples with income over this amount.
The Guideline Formula
The formula is complicated, and you may want to use an internet on-line calculator available at:
In this example, assume one spouse’s income is $50,000 and the other spouse’s income is $25,000:
To calculate the presumptive guideline amount: Example:
A. Take 30% of the income of the higher income spouse: $15,000
B. Subtract 20% of the income of the lower income spouse: -$5,000 = $10,000
C. Calculate 40% of the combined income of the spouses: $30,000
D. Deduct the lower income from the 40% amount (B.): $5,000
E. The presumptive award amount is the lower of (A.) and (C.): $5,000
Is There A Provision To Protect Spouses who are Poor?
Yes. A “self-support reserve” of 135% of poverty income ($14,620 for 2010) is established for the higher income spouse. Where the guideline calculated award would reduce the spouse’s income below the self support reserve, the guideline amount is the difference between actual income and the reserve. There is a rebuttable presumption that no temporary maintenance is awarded if income is below the self-support reserve.
What About Health Insurance?
When a divorce is started, an “automatic order” is issued providing that neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect. Under FCA §416 (h), the Family Court can also order that a spouse enroll eligible dependants or continue existing available health insurance benefits.
Most insurance policies do not provide for continued family coverage for an ex-spouse, other than limited time “COBRA law” coverage, which is often very expensive. If you need additional time to secure other coverage, the law provides that you or your spouse can request a 30 day delay in the divorce case, to secure other insurance coverage.
Can Spouses Still Make Private Agreements?
Yes. Spouses can form their own private settlement agreements in which the amount of temporary maintenance differs from the amount that would have been set according to the guidelines. There are conditions to private arrangements, and if they are not followed then the agreement is unenforceable. Most importantly, both parties must be informed about the law and the “presumptive amount” which would be due under the law must be specifically stated.
Also, if you already have a valid Separation Agreement or Pre-marital Agreement providing for maintenance, then the new law does not apply to you. A valid agreement must be in writing and properly acknowledged (notarized using specific language).
Can The Court Vary From the Temporary Maintenance Guidelines?
Yes. The formula will apply in most cases, but the court has the discretion to vary if it finds the support established in a particular case is inappropriate or unjust, in which case it is to be adjusted according to these factors:
- the standard of living established during the marriage;
- the age and health of the parties;
- the earning capacity of the parties;
- the need of one party to incur education or training expenses;
- the wasteful dissipation of marital property;
- a transfer or encumbrance made in contemplation of the divorce, without fair compensation;
- the existence and duration of a pre-marital joint household or a pre-divorce separate household;
- acts against the other spouse that have inhibited his/her earning capacity or ability to obtain meaningful employment, including acts of domestic violence;
- the availability and cost of medical insurance;
- the care of children, step-children, disabled adult children, elderly parents or in-laws, that has inhibited earning capacity or ability to obtain meaningful employment;
- the inability of one party to obtain meaningful employment due to age or absence from the workforce;
- exceptional additional expenses for the children, including daycare, education, and medical treatment;
- tax consequences to each party (maintenance is taxable to the payee & deductible by the payor);
- marital property subject to distribution;
- reduced or lost earning capacity as a result of foregoing or delaying education training, employment, or career opportunities during the marriage;
- contributions and services of the maintenance recipient as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; and
- any other factor the court expressly finds to be just and proper.
If support is adjusted from the guidelines amount, the court must set forth the reasons in a written order.
If a party defaults in the divorce (fails to respond to notices), and/or the court has insufficient evidence to determine income, then the award is to be based on the needs of the payee, or the standard of living of the parties prior to the divorce, whichever is greater.
What About After a Divorce is Final?
The court can also award “post-divorce maintenance”. This award is to be in such amount as justice requires, having regard for the standard of living established during the marriage, whether the recipient has sufficient property and income to provide for reasonable needs, and the circumstances of the case and the parties. In determining the amount and its duration, the court is to consider essentially the same “adjustment factors” as shown above. The court is also to consider these additional factors: the income and property of the parties, including property awarded in the divorce, the length of the marriage, the presence of children of the marriage in the home, and the ability of the ex-spouse to become self-supporting and the time and training necessary therefor.
How Can Maintenance Orders Be Modified?
The court can award permanent maintenance, but it shall terminate upon death or re-marriage, and is subject to modification upon a showing of the recipient’s inability to be self-supporting or a substantial change in circumstance, including termination of child support or financial hardship.
The new 2010 law that provided for maintenance guidelines and for “no fault divorce” also provided that a Commission would be appointed to study and review the state’s maintenance laws and to assess the economic consequences of divorce. The Commission’s final report is due by 12/31/2011.
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This article provides general information about this subject. Laws affecting this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer. Receiving this information does not make you a client of our office.
Author: Elizabeth Hendy, Staff Attorney - Current as of Sept. 2010