Maintenance

Maintenance in New York Divorces

By J. Douglas Barics
Long Island Divorce Lawyer

Spousal maintenance following a divorce or annulment is now determined by a formula set out in Domestic Relations Law 236 Part B, sections (5-a) and 6. Section 5-a governs temporary maintenance which is awarded while the case is pending, and section 6 governs how post divorce maintenance is determined.

How to Determine the Amount of Maintenance and Spousal Support

For all matrimonial actions filed on or after January 23, 2016, the award maintenance following the divorce is calculated by a formula set out in DRL 236 B (6). The 2016 amendment which introduced this formula was a fundamental shift in determining maintenance. Under the old law, it was a needs based approach. The current law is an income shifting model. Needs may still be a factor, but only to the extent that it is used to deviate from the statutory guidelines.

The formula in calculating support involves several steps. They are as follows:

Calculate the maintenance up to the existing statutory cap on income
- If the spouse paying support also pays child support, then use the first formula
  - For the first formula, calculate the maintenance under the part a of the first formula
  - For the first formula, calculate the maintenance under part b of the first formula
  - Take the lower of the two amounts
- If the spouse is not paying child support, or is receiving child support then use the second formula
  - For the second formula, calculate the maintenance under the part a of the second formula
  - For the second formula, calculate the maintenance under part b of the second formula
  - Take the lower of the two amounts
Calculate the maintenance on income which exceeds the statutory cap
- The process is repeated for the income over the statutory cap.

New York State has an online post divorce maintenance calculator available free of charge,

Online Matrimonial Maintenance Calculator

The award of maintenance may differ from the formulas, but the calculations must be made and there must be a finding that the formula gives an unjust or inappropriate amount of support.

The guideline amounts were determined when maintenance was deductible by the payor and reported as income by the payee. The tax rules were changed in 2018 and maintenance is no longer a deduction or reported as income. The statute has not been amended yet, but this is a factor to take into consideration when asking for a deviation.

How to Determine the Duration of Maintenance or Spousal Support

The maintenance statute gives a non mandatory advisory schedule to determine the length of the post divorce maintenance. This schedule is not required to be used.

Length of Marriage Duration of Maintenance

0-15 years: 15% to 30%

15-20 years: 30% to 40%

Over 20 years: 35% to 50%

When the duration of post divorce maintenance is decided, the court must consider the factors listed the maintenance statute and state its reasons how it arrived at the duration. This requirement cannot be waived, and doing so is reversible error if appealed.

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about your legal options for protecting your rights involving any situation that involves spousal support and maintenance. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.

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For a free phone case consultation or to schedule an office meeting, call 631-864-2600.

Overview

Matrimonial actions are defined by statute; the most common being divorce, annulment, and a declaration of a void marriage. For every matrimonial action all ancillary relief is available.

Divorce

Divorce is the most common matrimonial action. Grounds are no longer the primary focus, the emphasis is resolving the financial matters and custody.

Annulments

An annulment is a matrimonial action seeking to declare a valid marriage void. All ancillary relief is available. All annulment grounds are fault based, and require a higher level of proof to establish.

Void Marriages

Void marriages are those which are void from inception. An action requesting a declaratory judgment is a matrimonial action and all ancillary relief is available.

Matrimonial Appeals

Matrimonial appeals requires a combination of matrimonial law and appellate law. A lack of understanding of either can prove fatal in an appeal.

Equitable Distribution

Equitable distribution authorizes the matrimonial court to award all marital property to either spouse, without regard to title.

Maintenance

Maintenance is the support payments from one spouse to another. Since 2016 the amount is determined by a formula.

Child Support

Parents have an obligation to support their children, and the parent with residential custody will be awarded child support. The amount of support is determined by a formula.

Custody

When parents cannot decide where their children shall live and how to make decisions involving them, the court will decide custody based on the bests interests of the child.

Counsel Fees

Awards of counsel fees to the non monied spouse is available in all matrimonial actions. Awards can be made during the case and at the conclusion.

Expert Fees

Awards of expert fees to the non monied spouse is available in all matrimonial actions.

Exclusive Occupancy

The court is authorized to award exclusive occupancy to one party, giving them exclusive use and possession of a home for a set period of time during or after a matrimonial action.

Pendente Lite Motions

Pendente lite motions used when a spouse in a matrimonial action needs needs immediate court assistance on something that cannot wait until trial or a final settlement.

Same Sex Divorce

Same sex divorces present unique issues such as when the couple got married before it was recognized by law, or when couples used work arounds for their marital property.

Modification of Child Support

Child support may be modified based on a change of income, a change of circumstances, or if three years have passed since the last modification. COLA adjustments to child support orders can also be obtained.

Modification of Maintenance

Maintenance is subject to modification or early termination but the circumstances when these can occur are less common than in the past.

High Net Worth Divorce

High net worth divorces often involve non typical financial holdings that require special care in determining their disposition.

Marital Agreements

Marital agreements are contractual agreements between future, existing, or prior spouses who decide to resolve their own issues instead of letting a court decide for them.

Complex Challenges

Complex challenges in matrimonial actions can range from complex financial issues, inter-state or international issues, or procedural issues which deprived one spouse from their day in court.