Spousal Maintenance and Support
Spousal maintenance is governed by a statutory 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.
Both temporary and final maintenance use similar formulas, but they are not identical.
Both use an income shifting approach. A needs based model was abandoned in the 2010 amendments to the DRL.
Both sections use two calculations, and the lower of the two calculations is deemed by statute to be the presumptively correct amount.
Awards can differ from the guideline calculations, but the calculations still must be done and the reason why they are not being used explained.
The income used for maintenance is capped at $184,000. Any income over that amount may be considered as well but that decision lies with the court based on the specific circumstances of the parties.
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.