Pre-divorce Temporary Maintenance Awards

Pre-divorce Temporary Maintenance Awards In matrimonial actions filed after October 12, 2010, the NY Domestic Relations Law includes guidelines to determine the amount of awards for temporary support or maintenance. The guidelines factor in deviations in cases when the award of maintenance is inappropriate or unjust.

In 2010, the New York Divorce Reform Act amended the Domestic Relations Law statute by instituting specific guidelines which the courts are mandated to apply in order to determine the amount of maintenance award that the monied spouse is obligated to pay to the non-monied spouse. The court can also determine the amount of counsel fees to even the playing field@ so that both spouses are on an equal footing for the duration of their divorce case.

Based on Both Spouses Incomes

The application of these guidelines will result in an award of maintenance when there exists a gap in income between the spouses resulting in the income of the payees (the less-monied spouse) being less than 2/3 of the income of the payor=s (more monied spouse).

In determining the amount of temporary maintenance based on the guidelines, the court will make a comparison between 2 calculations of the party’s yearly incomes. This will be based on an income cap of $540,000 of the payor=s annual income. The payor’s income exceeding $540,000 is not factored into these calculations.

First Calculation: Thirty percent of the payor's income minus twenty percent of the payee's income,

OR

Second Calculation: Forty percent of both spouses= combined incomes. The income of the payee is subtracted from this amount and the total sum is the presumptive amount of the temporary maintenance award. The lesser amount from the 2 figures is then selected by the court as the amount of temporary maintenance to be awarded.

Guidelines for Court's Calculation of Maintenance in NY Matrimonial Actions Filed After October 12, 2010

Currently, the Family Court and the Supreme Court must apply the following guidelines in order to determine amount of temporary maintenance a spouse is required to pay the other spouse:

Unless the court finds the presumptive award to be inappropriate or unjust, the temporary maintenance must be awarded. If, on the other hand, the award is deemed unfair or improper, the court will consider seventeen factors to make adjustments to the award.

In a case where the payor’s yearly income exceeds $540,000, an adjustment to the amount may be made by the court. Under these circumstances, the court will take nineteen factors into consideration to determine any added temporary maintenance award.

The duration of the marriage is the sole consideration by the court in determining the duration over which the temporary maintenance award is paid. At the court’s discretion, temporary maintenance can be awarded for a limited time period through the final entry of the judgment of divorce.

The temporary maintenance guidelines include protections for spouses whose annual income is less than the self-support reserve. Temporary maintenance terminates upon the entry of the judgment of divorce, the issuance of the final award of maintenance or the death of either party, whichever occurs first.

Changes in the Income Cap

Every 2 years starting in 2010, the income cap has been and will continue to be increased by the product of the average yearly changes in the percentage in the Consumer Price Index for urban consumers (cpi-u), published by the US Department of Labor (Bureau of Labor Statistics) for the 2-year time period rounded out to the nearest $1,000. The New York Office of Court Administration is responsible for determining and publishing this income cap.

In matrimonial actions filed after January 25, 2016 notice must be given to you by the New York Supreme Court of the county where your divorce action was filed, in order to comply with the NY Maintenance Guidelines Laws of 2015 and in the event that you are not represented by an attorney in the NY divorce action.

Under the Maintenance Guideline Laws of 2015, the Court must award the guideline amount of maintenance on income up to $178,000 which must be paid by the spouse who earns the higher income (the maintenance payor) to the spouse who earns the lower amount of income (the maintenance payee), based upon a formula.

There are 2 formulas that determine the award or obligation. If there are no children involved, the “higher formula” applies. In circumstances in which the marriage includes a child or children, the “lower formula” applies. This is only the case if the payor of maintenance is paying the obligated child support to his or her spouse who has custody of the child or children. If this is not the case, then the “higher formula” applies.

Lower Formula
  1. The Payor’s Income is multiplied by 20 percent
  2. The Payee’s Income is multiplied by 25 percent

Line 2 should be subtracted from Line 1: = Result One

Payee’s Maintenance Income is subtracted from 40 percent of Combined Income: = Result Two

(“Combined Income” = Payor’s Income up to $178 thousand dollars + Payee’s Income) The lower of Result Two or Result One should be entered. If it is equal to or less than zero, zero should be entered.

THIS IS THE LOWER FORMULA CALCULATED GUIDELINE MAINTENANCE AMOUNT.

Higher Formula
  • The Payor’s Income is multiplied by 30 percent
  • The Payee’s Income is multiplied by 20 percent

Line 2 should be subtracted from Line 1: = Result One

Payee’s Maintenance Income is subtracted from 40 percent of Combined Income: = Result Two

(“Combined Income” = Payor’s Income up to $178 thousand dollars + Payee’s Income) The lower of Result Two or Result One should be entered. If it is equal to or less than zero, zero should be entered.

THIS IS THE HIGHER FORMULA CALCULATED GUIDELINE MAINTENANCE AMOUNT.

Note: The duration of maintenance payment will be determined by the Court based on the statute.

Consult an Attorney

The complexities are daunting for determining temporary spousal maintenance or support. You are encouraged to contact a divorce lawyer with specific knowledge in this aspect of matrimonial law. Get the benefit of Ingrid Gherman’s long years of hands-on experience in this area of divorce law, call 212.941.0767 or use the on-line contact form.