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Kathleen Wisseman, Plaintiff,


Richard Wisseman, Defendant.

Supreme Court, Dutchess County
Decided on March 15, 2019

Wisseman v Wisseman
2019 NY Slip Op 29092

Mackay & Berube, PLLC
12 Walker Road
Poughkeepsie, NY 12603

Kevin J. Reeves, Esq.
2345 Route 52, Suite 2-O
Hopewell Junction, NY 12533

Maria G. Rosa, J.
The parties to this divorce action were married on July 8, 2006. They have two children, ages 8 and 12. The plaintiff (the "Wife") has a high school diploma and a paralegal certificate. She worked for three to four years during marriage and was otherwise a stay at home mom. The defendant (the "Husband") did not testify as to his education. However, he works as a highway superintendent and has been the primary income earner.

On March 6, 2019 a hearing was held. Prior to the hearing, the parties' attorneys represented that all issues were able to be resolved with the exception of the sum of maintenance. Although the parties had agreed that the husband would be obligated to pay maintenance to the wife for a period of two years they were unable to agree upon the sum. The parties' attorneys represented that the basis for the inability to agree was the change in the tax law effective this year pursuant to which maintenance is no longer tax deductible to the payor spouse, in this case, the husband, and no longer includable as taxable income to the payee spouse, in this case, the wife. The quandary is twofold. First, it is the husband's position that he should pay less maintenance since he cannot deduct the maintenance payment from his taxable income. Second, the question is how much less. The parties agree that the husband's federal tax rate is 22%. Therefore, he claims that an award of maintenance calculated by strict application of the maintenance statue (Domestic Relations Law §236B(6)) would be unjust and inappropriate and that his statutory calculation should be reduced by 22%. However, the parties agree that the wife's federal tax rate is 12%. She argues that strict application of the statutory formula is mandated, and that reduction of her award by 22% would result in even less of a net payment to her than would have resulted if she had to claim the maintenance as taxable income.

Counsel stipulated that based upon the husband's annual income of $70,800.00 and the wife's of $30,000.00, strict application of the statutory guidelines would require maintenance of $512.54 per month.

The original purpose of the tax law enabling the payor spouse to deduct maintenance from his or her taxable income was to leave more disposable income available to both parties. This was accomplished by the spouse in the higher income tax bracket taking the deduction and having the sum deducted includable as income to the spouse in the lower tax bracket. Now, more tax is paid and the spouses as a unit have less disposable income.

When deciding the issue of maintenance, the court must consider all of the factors set forth at Domestic Relations Law §236(B)(6). At bar, the parties agree that maintenance is due and only the sum is to be determined. Their incomes and income abilities have been agreed upon, as has been the duration of maintenance. Both parties have represented that the other factors have been considered, and agreed upon, with the exception of the tax consequences to each party. Based on those representations and those relevant factors, strict application of the maintenance guidelines would be unjust and inappropriate so as to warrant a deviation. Based upon all of the above, it is hereby

ORDERED that the husband shall pay maintenance to the wife in the sum of $451.04 per month. The statutory award is reduced by 12%, the net result of which is application of the guidelines as intended by the New York State Legislature prior to the federal change in the relevant tax law, impacted only by a reduction concomitant with the wife's tax bracket and what she would have been obligated to include as taxable income. Until this court is guided by a higher authority or legislative change it finds that such deviation under these circumstances is just and proper.

As the parties represented that all other issues were resolved, the court is setting a "submit or appear date" of April 16, 2019 at 9:15 a.m. If a fully executed stipulation of settlement is submitted to the court on or before April 15, 2019, then there is no need to appear.

The foregoing constitutes the decision and order of the Court.

Dated: March 15, 2019

Poughkeepsie, New York




Pursuant to CPLR §5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.

The case of Wisseman v Wisseman is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Wisseman may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Wisseman v Wisseman is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.

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