On June 24, 2015, the New York State Senate passed Bill A7645-2015 relating to the duration and amount of temporary and post-divorce spousal maintenance. The bill passed the State Assembly on June 15th. It awaits approval by Governor Cuomo.
The law’s formulas apply to actions commenced on or after the 120th day after they become law (except for the temporary maintenance formulas which apply to actions commenced on or after the 30th day after they become law). The new law may not be used as a basis to change existing orders and agreements.
The law will undoubtedly be the subject of numerous articles and legal seminars. Years of decisions will be forthcoming that particularly focus on matters of discretion, just as they followed the enactment of the Child Support Standards Act in 1989.
Before getting to the new formulas, the law eliminates a major thorn in side of the matrimonial bench and bar: When equitably distributing the assets of the parties, the court is no longer to consider as a marital asset the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement.
As to maintenance, the following highlights may be noted, many of which are contained in the Sponsor’s Memo:
1. The “cap” on the payor’s income used for the maintenance formula is $175,000, above which will be a matter of the court’s discretion. This lowers the cap (now applying only to temporary pendente lite maintenance) from $543,000.The same $175,000 cap applies to post-divorce maintenance awards.
2. There are two formulas: one where child support will be paid to the maintenance recipient; and one where child support will not be paid, or where it will be paid to the maintenance payor. Those formulas are as follows: a. With child support where the maintenance payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance; maintenance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
3. Maintenance gets calculated first. Child support is then calculated using the income of the payor after subtracting maintenance to be paid and the income of payee income including maintenance received.
4. The court may adjust the guideline amount of maintenance up to the cap where it finds that the guideline amount of maintenance is unjust or inappropriate after consideration of one or more factors, which are to be set forth in the court’s written or on the record decision. Where there is income over the cap, additional maintenance may be awarded after consideration of one or more factors, which are to be set forth in the court’s decision or on the record.
5. When determining temporary maintenance, the court can allocate between the parties the responsibility for payment of family expenses” while the divorce action is pending.
6. The definition of income for post-divorce maintenance will include income from income-producing property that is being equitably distributed.
7. New factors in post-divorce maintenance will include: termination of child support, income or imputed income on assets being equitably distributed, etc.
8. The duration of post-divorce maintenance is a function a formula that includes ranges of different percentages of the marriage length depending on how long the marriage lasted. For marriages of zero to 15 years, maintenance would be awarded for 15% to 30% of the length of the marriage; for marriages of more than 15 up to 20 years, maintenance would be awarded for 30% to 40% of the length of the marriage; for marriages of more than 20 years, maintenance would be awarded for 35% to 50% of the length of the marriage. However, nothing prevents the court from awarding non-durational, post-divorce maintenance in an appropriate case.
9. In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age.
10. Actual or partial retirement will be a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income.
This law was one in a series of measures being introduced at the request of the New York’s Chief Administrative Judge, The Honorable A. Gail Prudenti, upon the recommendation of her Matrimonial Practice Advisory and Rules Committee. In developing this measure, Justice Jeffrey Sunshine, chair of the Advisory Committee, informally brought together lawyers belonging to different interest groups in an attempt to achieve a compromise on maintenance guidelines that addresses their sometimes conflicting concerns.
Sandra Rivera, Esq. and Michelle Haskin, Esq. represented the Women’s Bar Association of the State of New York; Alton Abramowitz, Esq. and Eric Tepper, Esq. represented the Family Law Section of the New York State Bar Association; Elena Karabatos, Esq. represented the New York Chapter of the American Academy of Matrimonial Lawyers; and Emily Ruben, Esq. and Kate Wurmfeld, Esq. represented the NYS Maintenance Standards Coalition.
As an example of the application of the formulas, consider the following calculations where a) the payor is the non-custodial parent and having income of $150,000, and the payee is a custodial parent having income of $50,000; and b) the payor and payee have the same incomes but there are no children being supported.