I have previously written about upcoming changes to New York’s spousal maintenance law. The Governor finally signed the new maintenance law, Ch.269 of the Domestic Relations Law on Friday, September 25th. The Temporary Maintenance provisions became effective 30 days thereafter, on October 25, 2015, and the balance of the law goes into effect 120 days after signing, on January 23, 2016. The new provisions represent a major change from the prior provisions that have been in effect since 2010.
The most significant of these changes is that formulas will now be used to determine both temporary and post-divorce maintenance. In the past, post-divorce maintenance determinations were largely up to the court’s discretion and were usually based upon applicable prior decisions. The following details how the two new formulas will work:
With child support where the maintenance payor is also the non‐custodial parent for child support purposes: (i) subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
Without child support, or with child support but where the maintenance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
Additionally, numerous other key changes are included.
A $175,000 income cap will be set on all temporary and post-divorce maintenance calculations. This is a major reduction from the current $543,000 cap. Maintenance calculations will now be made before child support calculations, thus allowing child support decisions to consider burdens from the maintenance determinations.
The duration of post-divorce maintenance will now be decided using a new advisory schedule:
Zero to 15 years of marriage: maintenance should last between 15 and 30 percent of the marriage’s duration.
16 to 20 years of marriage: maintenance should last between 30 and 40 percent of the marriage’s duration.
20 years of marriage or more: maintenance should last between 35 and 40 percent of the marriage’s duration.
Further, considerations of “enhanced earning capacity” will end. Until this statute was passed, attorney usually worked with experts to determine enhanced earning capacity, for example, the lifelong value of a professional degree that was earned over the course of a marriage. These calculations will no longer be used in helping to determine spousal maintenance. However, enhanced earnings may still be considered by the court when distributing other marital assets.
The changes to the Domestic Relations Law will likely result in greater uniformity of spousal support awards. Further, elimination of enhanced earnings as a distributable asset represent a major change in New York’s law.