One major aspect of resolving any divorce is resolving support issues. While child support sometimes becomes complicated, there is a statutory formula that has been in place for decades which governs the calculation of basic child support, as well as contribution to add-ons such as medical expenses, child care and education expenses.
However, the same is not true for maintenance (more widely known as alimony). New York’s Domestic Relations law provides several factors that the Court must consider when determining an award of maintenance, but once these factors are considered, maintenance is largely left up to the discretion of the Court. When the Domestic Relations Law was amended in 2010, a formula was put in place to determine an award of temporary maintenance (i.e. maintenance while the divorce action was pending) but it was made clear that this formula would not be applied when determining post-divorce maintenance and no further guidelines were added to aid in this determination.
Without such a formula, cases in which maintenance is an issue become very hard to resolve, as it is very hard for lawyers to predict with reasonable certainty what a Court would award if the matter went to trial, in terms of both amount and duration of maintenance. Additionally, since temporary maintenance has virtually no bearing on an award of post-divorce maintenance, and there is no “cut-off” point for an award of temporary maintenance, a recipient of a sizeable award of temporary maintenance has no motivation to resolve the matter. In fact, recipients of such an award may be tempted to attempt to prolong the action so they may receive such temporary maintenance for as long as possible.
However, a new bill which was passed by the NY State Senate on June 24, 2015 may put an end to the uncertainty of post-divorce maintenance, as well as the indefinite nature of a temporary maintenance award. Bill number A7645 proposes several amendments to the Domestic Relations Law. The major highlights of the proposed amendment are as follows:
1. The income cap for determining temporary maintenance is reduced from $543,000 to $175,000. The same cap would apply when determining post-divorce maintenance. It will be in the court’s discretion to consider income above this amount when determining temporary maintenance.
2. Two different formulas for determining post-divorce maintenance, not unlike the one for determining temporary maintenance. Which formula is used depends upon whether child support is to be paid, and whether the recipient of such maintenance award is the custodial or non-custodial parent.
3. The Supreme Court has the power to limit the duration of temporary maintenance, and the length of the marriage is one factor that is to be considered when determining such duration.
4. An advisory formula for the duration of post-divorce maintenance would become part of the Domestic Relations Law. It is not required that the Court use this formula, but it is designed to guide the Court in determining duration, and provides ranges to afford the Court more discretion depending upon the circumstances of the case (for example: for a marriage lasting 0-15 years, the duration of maintenance would be 15% -30% of the marriage, or 2.5 – 4.5 years).
For complete details on the proposed bill, as well as to follow the actions taken on this bill, go to http://assembly.state.ny.us/leg/?default_fld=%0D%0A&bn=A7645&term=2015&Summary=Y&Actions=Y&Memo=Y
If this bill passes, it will take a lot of guesswork out of one of the major ancillary issues of a divorce, and I believe it will aid in settling many cases in which maintenance is an issue.
Any updates on the signing of this bill into law will be reported on this blog, so please stay tuned!