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.