Spousal Support

A. Section 236B of the Domestic Relations Law provides for formulas to calculate temporary and post-divorce maintenance.

B. Under the legislation, in determining temporary and post-divorce maintenance where the payor will be the recipient of child support or where there are no children requiring support, the temporary or post-divorce maintenance award is calculated based upon the lower
of :

1) 30% of the payor's income up to and including the cap of $192,000 minus 20% of the payee's income or 2) 40% of the combined sum of the payor's income up to the income cap of $192,000 and the payee's income, minus the payee's income.

Under said legislation, in determining post-divorce maintenance where the payor will be paying child support to the payee, the post-divorce maintenance would be calculated based upon the lower of :1) 20% of the payor's income up to and including the cap of $192,000 minus 25% of the payee's income or 2) 40% of the combined sum of the payor's income up to the income cap of $192,000 and the payee's income, minus the payee's income. The result of the calculation of said formulas is the annual amount for any presumptive award of maintenance up to the income cap of $192,000, unless the Court finds the amount to be unjust and inappropriate after considering one or more of the following 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 or career opportunities during the marriage;
• The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career 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 which the court shall expressly find to be just and proper.

C. The legislation provides an advisory formula to determine the duration of maintenance which includes ranges of different percentages of the marriage length depending upon the duration of the marriage. For example for marriages of zero-15 years, maintenance may be awarded from 15%-30% of the length of the marriage, for marriages of more than 15 years and up to 20 years, maintenance may be awarded from 30%-40% of the length of the marriage, and for marriages of more than 20 years, maintenance may be awarded from 35%-50% of the length of the marriage. However, the court may award non-durational post-divorce maintenance in an appropriate case. In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age.

D. Opt-Out:The parties can agree to "opt out" of the application of the guidelines set forth in said legislation and agree to the provisions they set forth in an agreement including the waivers of maintenance.