In January of 2016, a new alimony law went into effect in New York State, which drastically changed the way that Courts handle post-divorce spousal support, referred to as “maintenance” in New York. The new law is something that you should be aware of if you are currently separated, going through a divorce, or considering divorce. The courts and divorce judges used to have wide discretion in setting an award of maintenance. However, the new statute ushers in a new methodology for determining post-divorce maintenance, in which the courts now will calculate a guideline amount of post-divorce maintenance based on a mathematical formula. The guideline amount will control unless there are other factors that make deviating from the guideline amount just and proper.
Both spouses will take his and her gross incomes and then deduct certain taxes and other deductions to arrive at an adjusted gross income number. These adjusted gross income numbers are then plugged into the post-divorce maintenance formula but each party’s income is capped at $178,000. The formula will determine whether there is a guideline maintenance award from one spouse to the other as well as the guideline amount.
The duration is now to be determined based on an advisory schedule, as follows:
Advisory Schedule of Duration of Post-Divorce Maintenance Award
Length of Marriage
Duration of Maintenance
|0 – 15 years||15% – 30% of length of marriage|
|15 – 20 years||30% – 40% of length of marriage|
|More than 20 years||35% – 50% of length of marriage|
The exact duration and whether to deviate from the guidelines is determined after consideration of the following fifteen factors.
- the age and health of the parties;
- the present or future earning capacity of the parties, including a history of limited participation in the workforce;
- the need of one party to incur education or training expenses;
- the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
- the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
- the existence and duration of a pre-marital joint household or a pre-divorce separate household;
- acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
- the availability and cost of medical insurance for the parties;
- the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
- the tax consequences to each party;
- the standard of living of the parties established during the marriage;
- the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment orcareer opportunities during the marriage;
- the equitable distribution of marital property and the income or imputed income on the assets so distributed;
- the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
- any other factor expressly found to be just and proper
The formula is actually a misnomer of sorts because the “formula” entails a number of calculations that need to be run and applied. The first applies where child support will be paid and the maintenance Payor (higher income spouse) is the non-custodial parent. The second formula applies where child support will not be paid or where child support will be paid by the custodial parent or there are no children and therefore, no child support. Sometimes these formulas result in no maintenance but if there is a significant disparity in income between the parties, there will likely be guideline maintenance from the spouse that makes more money to the non-monied spouse. Please see the following maintenance calculator:
Please contact Divorce Mediation Advisors and speak to an attorney about the new alimony/maintenance laws in New York State.