In June of 2015, a bill passed the New York Assembly (A07645) and Senate (05678) relating primarily, but not exclusively, to the determination of maintenance/spousal support. These changes continue to await the signature of Governor Cuomo.
The amount and duration of maintenance in a divorce case has always been a matter of discretion for the Court with certain enumerated factors of the Domestic Relations Law being considered. In 2010 the legislature enacted guideline formulas for a court to use when determining “temporary maintenance” while a divorce case was pending. Naturally, courts, attorneys and litigants began considering those amounts when considering an amount of “non-temporary” maintenance as a result of the fact that the twenty factors listed in the Domestic Relations Law are general in nature and certainly do not yield a specific amount after their consideration.
The temporary maintenance formulas that have been in effect since 2010 provide for two different calculations with the one yielding the lowest amount of spousal maintenance being the guideline amount regardless of whether or not there is also child support being paid temporarily.
The changes that await the Governor’s approval would establish a two track system for determining an amount of temporary and/or post-divorce maintenance.
The first track would be when the spouse paying maintenance is also in a position where he/she will be ordered to pay child support. That particular scenario has two formulas that are utilized which generally speaking should yield a lower amount of maintenance as a result of the fact that the payor will also be paying child support.
The second track would involve a scenario either where there are no children to support or where the spouse paying maintenance would be receiving child support from the other party. In the second track, there are also two formulas that are used which are the same currently being used to determine temporary maintenance only.
The temporary maintenance formulas currently use a cap of $543,000 on the income of the payor for the determination but the proposed amendments would use a cap of $175,000 of the payor’s income for the determination. Overall, the Court still has discretion to consider income over the cap and also to use a different amount than the formulas yield to the extent it finds the amount “unjust or inappropriate” and specifically memorializes its reasoning.
Also new is that the legislation specifically indicates that the amount of maintenance would be subtracted from the income of the payor and added to the income of the payee for calculating child support.
The proposed changes would also require the court to “consider and allocate, where appropriate” the responsibility for each spouse to contribute to family expenses while the case is pending.
An advisory schedule is included relative to the duration of maintenance which is dependent upon the length of the marriage. For example, a marriage between 15 and 20 years (measured from the date of marriage to the date a divorce action is commenced) would involve a suggested duration of maintenance between thirty and forty percent of the length of the marriage. As the label suggests, the Court is not bound by the advisory schedule but must consider it along with other factors and is also required to set forth in a written decision or on the record the factors it considered when rendering a decision.
Family Court continues to have the ability to order an award of spousal support in the limited circumstance where a spouse has sought an order of support from Family Court while still being married. The spousal support formulas are the same as those for temporary and post-divorce maintenance. The advisory schedule for duration does not apply as a spousal support award is terminated either by a further court order (such as a Judgment of Divorce) or the death of either party and otherwise is non-durational.
The pending legislation also specifically indicates that “the court shall not consider as marital property subject to distribution the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity good will, or career enhancement” which certainly seeks to end the controversial proposition that educational attainments earned during the marriage which can be shown to have resulted in some form of enhanced earning capacity have a value to be distributed. The amendments do indicate that when a court makes its determination regarding the overall equitable distribution that it “shall consider direct or indirect contributions to the development of the enhanced earning capacity of the other spouse” so while such enhanced earning capacity will no longer formally exist as an asset to be valued and distributed, it still remains a “consideration” in the distribution of assets.
The provisions of the legislation that impact the determination of temporary maintenance awards would be effective within thirty days and the remaining portions of these amendments would become effective one hundred and twenty days after becoming law. We will need to continue to keep an eye on the Governor’s office as to if/when that occurs.