New Jersey’s Child Support Guidelines

Typographical art map of New Jersey, Michael Lonardo , www. eminjaydesign.com

Typographical art map of New Jersey, Michael Lonardo
www. eminjaydesign.com

Under the law, both parents are responsible for the financial needs of their children.  In an intact family, the parents pool their combined income and share the expenses for the members of the household, including children.  New Jersey’s Child Support Guidelines are based on economists’ estimates on what parents in intact New Jersey families spend on their children.  The same income sharing approach is used to determine how divorced or separated parents will share a child support award.

The Guidelines recognize each parent’s net monthly income.  The Guidelines are applied up to the combined net annual income of $187,200, or combined weekly net income of $3,600.    Then, adjustments  to the support obligation may be made, based on a parent’s parenting time with the child,  that either parent supports other legal dependents, or the age of the child.  A child over age 12 is considered to have more expenses than a younger child, and support is adjusted upward.  Furthermore, child-related expenses such as work related child care, health insurance premiums for the child,  unreimbursed health care expenses or other predictable and recurring expenses for the child may be added to the basic child support obligation.

In “extreme income” situations, where the combined weekly net income exceeds $187,200 per week, the court shall apply the guidelines up to $187,200 and supplement the guidelines-based award with a discretionary amount based on the remaining family income and the factors specified in N.J.S.A. 2A:34-23 (a).  A child’s extraordinary expenses not covered in the basic award can be added to the child support obligation as appropriate.  In high income cases, children are entitled to be supported in a manner reflective of the parents’ standard of living and share in their parents’ good fortune.  If income is below the poverty level, another approach is used.

Child support awards hinge on custodial and parenting time arrangements and designations.  New Jersey utilizes the term “PPR”, or “Parent of Primary Residence” for the custodial parent, and the “PAR” or the Parent of Alternate Residence” for the non-custodial parent.

A child support award in a sole parenting situation reflects the share of child-rearing costs the PAR pays to the custodial parent for the benefit of the child or children.    The award may need to be adjusted to reflect the parenting time the PAR spends with the child, and to accommodate duplicate and shifting expenses.   The  Sole-Parenting worksheet, set forth in Appendix IX-C, is used to calculate child  support when the PAR spends less than two or more overnights with the child each week; this is less than 105, or or 28% of 365 overnights.  Appendix IX-F is a chart setting forth  Sole Parenting awards up to the combined net income cap.

A shared parenting situation is defined as one where the child spends most of his or her overnight time, (more than 50% of overnights annually), with the PPR.  This arrangement recognizes that the PAR must establish and maintain separate living accommodations for the child during overnight stays.  The application of the Guidelines to shared parenting situations recognizes both parents’:fixed costs, such as housing, and utilities, and household furnishings;  variable costs such as transportation and food, which follow the child; and controlled costs, over which the PPR has direct control, such as clothing or entertainment.  The Shared-Parenting worksheet, set forth in Appendix IX-D, sets forth each parent’s share of the shared parenting basic child support amount.

As an attorney, I use a comprehensive child support calculator and software to plug in the relevant factors and “run the numbers” using different scenarios and approaches to custodial and parenting time, the parties’ finances, and the children’s needs and expenses.  Negotiations frequently entail many moving parts which will impact the child support awards pursued or agreed to.

For those who wish to  learn about the Guidelines, or utilize the worksheets to calculate awards, they are set forth in great detail in the Appendix to the Rules.  Specifically, Appendix IX-A sets forth the considerations in the use of the Child Support Guidelines.   Appendix IX-B sets forth line by line instructions on how to complete a Sole-Parenting or Shared-Parenting worksheet and calculate support.  Appendix IX-C is the sole-parenting worksheet.  Appendix IX-D is the shared-parenting worksheet.  These worksheets are fillable and may be printed.    Appendix IX-E sets forth worksheets to calculate net child care costs for the children, which may be added to the support obligation.  Appendix IX-F sets forth  sole parenting awards up to the combined net income of $3,600 per week or $187,200 per year.   Appendix IX-H sets forth the combined tax withholding tables used for the Guidelines calculations.

Divorcing or separated parents must “run the numbers” and understand the amount of support the Guidelines calls for.  While many parents stipulate, or consent to an award that differs from an award calculated using the Guidelines, the parties’ agreement or consent order must set forth the amount what would have been awarded if using the Guidelines, and the reason that the stipulated award differs from the Guidelines-based award.

Make sure to work closely with your attorney to fully understand the law on child support, and your child support arrangements.  I am very happy to help you with any child support issues you may have..

Reflections on New York’s “Pets Are More Than Property” Pet Custody Case

dachshundI recently represented the Plaintiff in a divorce, Travis v. Murray,   977  N.Y.S. 2d 621 (N.Y. S.Ct. 2013), involving a pet custody dispute in New York Supreme Court.  The young dachshund, Joey, was the only issue in the parties’ very short, childless  marriage.   Joey was purchased by my client before the marriage, though the parties lived together and were in a domestic partnership at that time.  The parties had not spoken since the Defendant removed Joey from my client’s apartment while she was away on a business trip.

Previously, under the New York law, pets were regarded as “chattel,” or property, similar to a table or piece of art or other property, to be returned to the owner, or reimbursement paid to the party who paid for it, upon presentation of the bill of sale.    Reflecting the dearth of published New York opinions and precedent on pet custody disputes between spouses in matrimonial matters, the case was regarded as one of first impression.

Justice Matthew F. Cooper found that the disposition of a cherished family pet in a New York divorce warranted the court’s attention and judicial resources, but not as much as a child custody matter might.   The judge further declined to apply the same “best interest of the child” standard that applies in child custody cases.    Judge Cooper issued a lengthy decision reviewing the law on pet custody in New York, and throughout the country.   As in the recent New York case between unmarried parties, Raymond v. Lachman, the judge applied a “pets are more than property” standard.   Judge Cooper ultimately granted the parties a one-day, “winner takes all” trial for both parties to demonstrate what is “best for all concerned” with regard to Joey.  The matter was resolved prior to trial.

Here are my reflections on  litigating pet custody cases, and the end result:

1.  Try and Work it Out Between You.  Divorce matters involving pet custody, like most divorce litigation, can be emotional, expensive, and the outcome uncertain.   Splitting and divorcing parties can benefit from coming together in a safe space to voice and address the issues underlying the legal disputes between them.   Before you litigate, see if you can work the issues out with the other side, either informally, or through alternative dispute resolution, such as mediation.     Think through, discuss, and perhaps enter into an agreement on pet ownership issues upon buying or acquiring the pet.  This is good advice with any joint ownership or undertaking, be it a house, a business, or a partnership, or adopting or buying or a cat or a dog.

2. Pets Can Be More Than Property.   Judge Cooper’s decision recognizes that a cherished pet is part of the family.  Yet, we can’t know an animal’s feelings and preferences, and “what is best for all concerned” is subjective.  As a trial is required to present proof on these issues, one must be very sure that expending emotional, financial and other resources to prove the issues at trial, and through the court system, is the best resolution.

3. Reach Creative Solutions.   Judge Cooper used a “winner takes all”  approach,  where no visitation or further litigation on the issue of the pet would be sanctioned.  He noted that the parties were free to come to their own agreement, though the courts should not accommodate post-judgment litigation upon violations of pet custody and visitation arrangements.  However, many divorced and splitting couples can and do  reach agreement on support, custody, and visitation issues regarding the family pet.   These arrangements are frequently incorporated into divorce agreements and judgments, and they work for many parties.  See if you can share or alternate time with the pet, or otherwise work together to keep the cherished animal in both parties’ lives.

As the vast majority of matrimonial and family law cases settle and do not go to trial, it makes good sense to see if one can resolve issues surrounding pet custody without extensive litigation.   Pursuant to Travis v. Murray, parties can make their own arrangements, knowing more about the Courts’ approach to the issue of what is “best for all concerned.”

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New York Overhauls Its Spousal Maintenance Law

DSC06088.JPGIn 2010, New York State enacted divorce reform which included no-fault divorce, and guidelines and formulas governing temporary (pre-divorce) maintenance awards. On September 25, 2015, Governor Andrew Cuomo signed into law a bill establishing new maintenance procedures developed following a study by the State Law Revision Commission, and a Statewide panel of stakeholders convened to review and rework the law.

The new Domestic Relations Law §236 (B) ( 5-a) and changes to the Family Court Act statutes on spousal support are a product of the private bar, the Court system, the Legislature and advocates representing low-income clients coming together to address needed changes.

Here are the highlights of the new changes:

Formulas For Post-divorce Maintenance.  The prior law only provided guidelines and formulas for pre-divorce, or temporary maintenance awards.   Now the law will apply the same 2 formulas to temporary maintenance and post-divorce maintenance awards.

 Separate Formulas for Maintenance Payments for Monied Spouses Paying Child Support.   The prior law applied equally to parents with children paying child support, even if the maintenance payor was also the custodial parent.  The new law will use a different formula requiring less maintenance for a maintenance payor who is also the non custodial parent and paying child support.  Maintenance is calculated prior to child support.  For child support guidelines calculations, maintenance is deducted from the payor’s inome and added to the payee’s income.

Lowering the Income Cap for Maintenance Payments.  The 2010 law provided for application of the formula up to the income cap of $524,000.  The revised law will establish a $175,000 income cap for applying the formula to determine maintenance payments.  Any award of maintenance on the above-the-cap income is discretionary and based on statutory factors.

Duration of Temporary and Post-Divorce Maintenance Awards.  Prior, the temporary maintenance award would be in effect for the duration of the litigation.   Now, the Court may determine the duration of the temporary maintenance award, considering the length of the marriage.  The temporary maintenance may be shorter than the litigation.  Further, in awarding post-divorce maintenance, the Courts may now consider an advisory schedule, tied to the length of the marriage and yielding a percent of the length of the marriage for which maintenance will be payable.  The Court must also consider the consequences of anticipated retirement on the duration of the award.   The Court must consider the statutory factors in determining duration and set forth on the record the factors considered.  The new statute now provides that maintenance shall terminate upon death of either party or remarriage of the payee.

Elimination of the O’Brien, Enhanced Earning Capacity Concept.  The old law, established in the O’Brien case, allowed the Courts to value and divide intangible marital assets, such as enhanced earning capacity through a spouse achieving an advanced academic degree, license, or other career enhancement or goodwill, in deciding equitable distribution.  The new law eliminates this concept.

The New York Courts have posted updated worksheets and calculators to assist litigants in running the numbers under the new law.  They may be found here.  Court worksheets and calculators were updated in March 2016 and may be found here.

NOTE that the effective date for the new Temporary Maintenance formula is October 26,2015!    This law applies to all actions commenced after October 26, 2015.

NOTE that the effective date for the new Post-divorce Maintenance law is in January 23, 2016 and this law applies to all actions commenced after that date.

The new law does not affect agreements made prior to the new law taking effect.

It is important to consider whether to file for divorce prior to new law taking effect.  Speak to your lawyer about what’s best given the circumstances in your case..

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Domestic Violence – New York’s Order of Protection

abusive words & bullying IS domestic violence

Domestic violence affects men and women from all backgrounds and circumstances, notwithstanding  race, ethnicity, age, sexual orientation, religious affiliation, socioeconomic status, education, and occupation.

Who May Obtain an Order of Protection

A victim of domestic violence can request a civil Order of Protection from the Family Court or the Supreme Court.   To have standing to apply for  a New York Order of Protection, the applicant (Petitioner) must be a current or have former intimate or family (blood or affinity) relationship.  This includes same-sex relationships.   ‘

The Family Offenses

To obtain a Final Order of Protection, the Petitioner must present and prove allegations making out at least one enumerated Family Offense, as defined by New York’s Penal Law:

Disorderly conduct
Menacing in the second or third degree
Harassment in the first or second degree
Reckless endangerment
Aggravated harassment in the second degree
Stalking
Assault in the second or third degree
Attempted assault
Criminal mischief
Sexual misconduct
Sexual abuse in the second or third degree
Forcible touching
Strangulation
Criminal obstruction of breathing or circulation
Identity theft in 1st, 2nd or 3rd degree
Grand larceny in 3rd or 4th degree
Coercion in 2nd degree [Penal Law §135.60 (1),(2),or (3)]
The standard of proof is low – the preponderance of the evidence standard.  The only evidence may be the testimony of the parties.  If the Court finds, after a trial, that it is more likely than not that at least one family offense occurred, it will grant a Final Order of Protection.   In making custody and parenting time decisions, the Court must give weighty consideration to findings of domestic violence.
 
Temporary and Final Orders of Protection
The Family Courts routinely grant Temporary Orders of Protection ex parte (without the other side present).   The Courts can also address, on an emergency and temporary basis, child support and custody issues, order the removal of firearms, and award exclusive occupancy of the parties’ residence.  The Family Court can grant an Order of Protection for a duration of 2-5 years, depending on whether there has been aggravating circumstances.  Aggravating circumstances can include the use of a weapon or dangerous instrument or posing a threat to members of the household.
The Supreme Court can also grant an Order of Protection in connection with divorce proceedings.

As a family law attorney for over 20 years, I’ve seen that Orders of Protection can and do make a big difference in the lives of many New Yorkers and their families.  For more information on Orders of Protection, visit the New York State’s Unified Court System’s page on Family Offenses.

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New York’s Child Support Guidelines (CSSA)

100 DollarsNew York State child support obligations are governed by the Child Support Standards Act (CSSA), which provides a formula to calculate monthly support and add-on support until a child reaches the age of 21.   The CSSA reflects that children are entitled to share in the income and standard of living of both parents, even if they no longer live together.  Where the Family Court Support Magistrate or the Supreme Court judge decides child support, the court is required to use the CSSA in all child support determinations.  Changes to the CSSA combined parental income cap was last amended and made effective March 2016.

Under the CSSA, the court first determines combined parental income and then allocates to the first $143,000 of combined parental income a percentage to child support.   If this yields an unjust or inappropriate award, the court may deviate upward or downward from the CSSA based on statutory factors for varying the award.  For the amount of parental income over $143,000, the court has discretion to but is not required to apply the statutory percentage.  Alternatively, it can vary the award,  using the statutory factors.

Where the parents’ combined income exceeds $143,000 per year, the court should follow a three-step process for determining child support:

1) The court must determine the amount of the combined parental income by adding the incomes of both parents.

2) The court must determine the amount of basic child support, predicated upon the first $143,000 of combined parental income, by (a) applying the statutory percentage to the first $143,000 of income to determine the total basic obligation; and (b) prorating responsibility for the total basic obligation between the parents based upon the proportion that each parent’s income ( including income above $143,000 per year) bears to the total combined parental income.

3) Finally, the court must decide whether to make an award based upon the additional income above $143,000 per year and, if so, whether to use the statutory formula. If the court decides to use the statutory formula, it must follow the same process that it did in determining the amount of basic child support based upon the up-to-$143,000 of combined parental income. Upon completion of the three-step process, the court should also consider whether the result thus obtained is unjust or inappropriate, based upon the statutory factors, and warrants deviation.

The statutorily factors, set forth in the DRL  and FCA,  include:

• The financial resources of the parents

• The child’s special needs, if any

• The standard of living the child would have had if living with both parents

• The tax consequences to the parents

• The non-monetary contributions made by each parent

• The educational needs of either parent

• The discrepancy between the incomes of the parents

• The needs of other children for whom the non-custodial parent is responsible

• Any extraordinary expenses involved in visitation of the child

• Any other factor the court may consider important

Add-on Expenses, such as reasonable child care expenses for the working parent, and reasonable unreimbursed medical expenses, must be allocated by the court between the parties on a pro-rata basis, in the same proportion as each parent’s income is to the combined parental income.  This amount is separately stated and added to the basic support obligation. The court has the discretion to allocate educational expenses and other child care expenses as well.

It is not unusual for the New York City courts to apply the guidelines to a parent’s  income, up to a certain “cap.”  Speak to your lawyer about the likely cap in your county. For a chart that allows you to see the range of support that is owed based on the non-custodial parent’s income, click here.

Here is another very helpful worksheet that helps you “run the numbers,” step by step.   For more information on agreements on support or modifying a support obligation, see my other blog posts on New York Child Support Obligations: Stipulations and Agreements, and Modifying New York Support Obligations..

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The Financial Issues of Divorce: A Financial Expert Answers Your Questions

Divorce and family law matters inevitably involve financial issues.    Here is my interview with Claudia E. Mott, CFP, CDFA, of Epona Financial Solutions,  who will tell us more about the financial issues of divorce.

Can you review the types of financial information needed in divorce?

When preparing for divorce, the couple needs to create a complete picture of their financial life both jointly and what will be anticipated for each party’s life separately.    A balance sheet which lists all of their assets as well as the liabilities and a detailed living expense summary are the starting points.

Assets include the value of the home or apartment, bank, investment and retirement accounts, personal property such as automobiles, art or other collectibles and the cash value of life insurance.   On the liability side, outstanding balances on mortgages, credit cards, and all forms of loans; student, auto, personal, must be listed.    By creating this inventory listing, it becomes easier to know what documents and statement are needed.

The living expense summary should be created to reflect a year’s lifestyle for the family.   Used to complete the Case Information Statement (CIS) or Statement of Net Worth, it includes a breakdown of costs for housing, transportation, medical and personal expenses at a very detailed level.

What are common financial mistakes made during divorce?

During the divorce process it is important to think about both the near-term and long-term impact of the financial decisions that are being made.   In particular, when assets are being divided, it is essential to weigh the long-term effect of keeping a home versus retaining a retirement asset of similar value on an individual’s net worth.   All too often one spouse opts to remain in a home that is too expensive for them to maintain and as a result they find themselves with little to no savings as retirement approaches.

Taxes are also often overlooked when valuing assets and understanding the true amount of alimony being received by the payee.    Retirement accounts such as IRAs should be tax-adjusted to reflect the value the recipient is more likely to receive when the payment is considered income.    Creating a schedule of estimated tax payments is extremely important for a spouse who has never paid taxes individually but will be receiving substantial alimony payments.

Understating a family’s real living expenses can end up with a settlement that does not adequately provide for the family post-divorce.   Gathering the information is not a difficult process, but it is tedious and items such as out-of-pocket cash are often overlooked.

What are the most difficult financial challenges that must be dealt with during the divorce process?

All too often, getting a true and complete picture of the family’s financial picture because of a lack of cooperation by one party creates one of the most costly difficulties.   All documents and statements related to accounts need to be provided to create an accurate balance sheet and CIS and financial disclosure form, but when information is held back or excluded the divorce process may not move forward without possible court intervention.

The issue of hidden assets can also present a significant challenge when it comes to creating the essential financial statements for divorce.   This situation often arises when cash based businesses are the main source of income for the family.   Upon review of the family’s living expenses and tax returns it may appear that things don’t add up and a forensic accounting or business valuation must be completed to provide a more accurate picture.

Whether it is the difficult financial times we have experienced since 2008 or a family’s unwillingness to live within their means, many divorcing couples are now saddled with debt.   During the divorce process it is best to try to eliminate as much debt as possible so that the spouses can move on without these lingering obligations but in many cases this isn’t possible.    Difficult decisions need to be made about keeping a house if there is equity that can be used to pay-down debt, or accepting the possible tax and penalties of dipping into retirement accounts to generate the cash to eliminate the joint obligations.

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What Is Divorce Mediation? A Mediator Answers Your Questions

I am often approached for help with divorce litigation and end up suggesting that clients consider mediation.  Many clients choose mediation, and ask me to assist them with mediation review services, and finalizing the divorce following the mediation process.

Clients often have heard about the option of  divorce mediation, but have less knowledge of how it works in practice and how it helps divorcing couples.   Here is my interview with Ian Grodman, of Accord Mediation Center, who will tell us more about divorce mediation.

What is divorce mediation?  Mediation is a process in which the parties to a dispute or conflict are assisted by a neutral, third party. In the divorce scenario, the parties  meet for a number of mediation sessions with the mediator who facilitates communication between them directly to resolve the issues which must be addressed, including parenting schedules and child support, distribution of property and assets, and spousal support.  Working with the mediator, the divorcing couple  reviews their family’s circumstances, discusses their needs, and work together to come up with the best solutions for everyone involved.

How does divorce mediation differ from litigation or negotiating a settlement?  Mediation is very different from litigation. In mediation, the parties communicate with each other directly, rather than through counsel.   The communication is typically in a peaceful environment, the confidentiality of which is protected by law. The parties, with the assistance of the mediator, have complete control over the process, the problem solving, and the solutions which are developed to meet their needs.

Why do divorcing parties need lawyers or other professionals if they have a mediator?  The mediator is a neutral third party facilitator, and does not represent either of the parties. Accordingly, the mediator cannot give legal advice, nor can he or she advocate for the parties. While a good mediator can provide legal information generally, he or she cannot advise or come up with a legal strategy for either of the parties. That should be done by each party’s individual attorney, who can insure that their client’s interests are protected.

How is divorce mediation better?  Most people focus on the economic benefits of mediation, which almost always leads to a more efficient and cost effective manner of resolving the issues which come into play in a divorce. That is a tremendous benefit, but when I first meet with parties thinking about mediation, I tell them that I believe the greatest benefit of mediation is that you, the parties, are making the decisions and determinations about what is best for you and your family-and nobody knows you and your family better than you.

What happens after mediation?  Once mediation is completed, the mediator will draft the agreement using the terms which have been agreed to during the mediation. I advise my clients to review the terms of the agreement with their own individual counsel who will advise them if the terms are sound and reasonable (which they should be).  The final agreement will be incorporated into the final Judgment of Divorce.

 

 

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New York Child Support: Where the Parents Share Custody, Who Pays Support?

These days, many parents share custody and parenting time of the children between them and agree to joint physical custody.   Because New York utilizes a three-step  application of the Child Support Guidelines formula, under the Child Support Standards Act (CSSA), parents who share custody must still “run the numbers” under the CSSA and designate a non-custodial parent, who pays support.

The key question is: Which parent  can be said to have physical custody of the children for a majority of the time?   That parent is deemed the custodial parent for the purpose of calculating support.  Where the parents’ custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater income, determined after application of the three-step statutory formula of the CSSA, should be identified as the “non-custodial” and payor parent for the purpose of child support, regardless of the labels employed by the parties.

If the application of the CSSA formula leads to an unjust and inappropriate result, the guidelines order of support may be modified upward or downward, using the “paragraph f factors” of  DRL §240 1-b (f) and  FCA §413(1)(f) .   These factors are:

• The financial resources of the parents

• The child’s special needs, if any

• The standard of living the child would have had if living with both parents

• The tax consequences to the parents

• The non-monetary contributions made by each parent

• The educational needs of either parent

• The discrepancy between the incomes of the parents

• The needs of other children for whom the non-custodial parent is responsible

• Any extraordinary expenses involved in visitation of the child

• Any other factor the court may consider important

The parties often deviate from the guidelines support in Stipulations and Agreements using these deviation factors.

The present state of the law can prompt the parties to fight over who gets more parenting time.  However, the CSSA allows the parties to make their own agreements, as long as they use the CSSA methodology and formulas, make the appropriate calculations and recitations, utilize the factors for deviation, and the children are adequately provided within  for.  Most importantly, the designation as non-custodial parent for support purposes only does not  confer superior rights to custody or parenting time.

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New York’s Maintenance Law: The Formula and the Factors

New York has a strong public policy interest in spouses becoming financially independent post-divorce.  However, concerns have been raised that the implementation of New York state’s maintenance laws have not yielded equitable results.    In 2010, along with other divorce reform, New York significantly changed its laws concerning temporary and permanent maintenance awards.  It is one of only a few states that currently use formulas to govern maintenance or alimony awards.  Now that New York’s Law Revision Commission has recently weighed in on the maintenance laws, an additional overhaul  may be coming soon.

Historically, New York’s maintenance, formerly known as alimony, has been discretionary, and up to the judge to decide maintenance  awards, based on statutory factors in the law  including the length of the marriage, age and health of the parties, one spouse’s ability to pay maintenance, and the payee spouse’s ability to be self-supporting.   Unlike child support, there had previously been no guidelines or formulas in place for judges (or parties trying to settle cases) to use in setting the amount and duration of maintenance awards.  This created uncertainty, and inconsistent awards, and encouraged litigation.

In 2010, the maintenance statute, DRL Section §236 B, was amended to provide guidelines for temporary maintenance to be awarded during the pendency of a contested divorce action.  The present law does not apply to permanent, post-divorce maintenance awards, nor does it provide a formula to determine how long maintenance should be paid.  As such, final maintenance awards are currently negotiated or awarded on a case-by-case basis.

The guidelines on temporary maintenance, set forth in DRL §236 (B)(5-a), provide a formula, based on the parties’ incomes, to calculate the  amount to be awarded.   As the law does for child support under the Child Support Standards Act (CSSA), the maintenance law still allows for judicial discretion to deviate from the presumptive amount, based on consideration of 17  factors, also expanded in 2010.  DRL §236(B)(5-a)(e)(1).  The court must specify the reasons for the deviation in writing.  Parties may “opt-out” of the formula, but if they choose to deviate they must explain their reasons for doing so.  

Effective January 31, 2014, the temporary maintenance formula applies to the first $543,000 of the payor’s income. For any income above $543,000, the Court must analyze 19 factors, as set forth in DRL § 236(B)(5-a) (c) (2) to determine whether to award any additional amount of temporary maintenance.

Where there is an income differential, temporary maintenance may be appropriate.  With the formula, the amount of temporary maintenance is the LESSER of:

30% of the Payor’s income LESS 20% of the Payee’s income

OR

40% of the parties’ combined income LESS the Payee’s income. 

Worksheets and calculators are available to assist in using the formula.  Find the New York Courts’ Temporary Maintenance Tools here.

New York State’s Law Revision Commission, which has been studying maintenance awards for 3 years, has recently  issued a report (here), recommending that the formula apply only to people earning up to $136,000, and that it  be extended to cover post-divorce, permanent maintenance awards.  As with the current law, when considering an additional award from income exceeding $136,000, courts would have the discretion to adjust an award if it were to be too harsh or inequitable, guided by the statutory factors.  No formula on duration of maintenance awards was proposed.

The $136,000 figure was recommended, in part, to match the former CSSA guidelines income cap (effective January 31, 2014, it was raised to $141,000), and because it covers 85% – 90% of New Yorkers.  For couples with higher incomes, judges would use their discretion to award additional maintenance. 

New York’s lawmakers will surely be considering the recent Commission report.  Run the numbers and speak to your lawyer about the law on maintenance to see how it may impact your case.

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photo by: Martin Lopatka

Just Divorced? Handle These Important Post-Divorce Follow-ups

Congratulations!   You’re divorced.   Can you file your Judgment of Divorce and forget it?  Pour a drink and book your trip to the Caribbean?  Not yet!  Handle these important post-divorce follow-ups.

Change Beneficiary and Life Planning designations.  It is essential to change your beneficiary designations to reflect your post-divorce realities.  The U.S. Supreme Court recently decided a case, Hillman v. Maretta, where the husband failed to change the beneficiary of his group life insurance policy from his ex-wife to his new wife.   Because she was his beneficiary, the ex and not the widow received the benefits.   See the decision here.  To prevent unexpected disasters, update all life insurance policies, including those  securing support agreements, retirement plans, and traditional pension plans.  Do not postpone updating your will, powers of attorney, health care proxies and other life planning documents.  Do not assume that the law provides for any automatic change.

Secure Continued or New Health Insurance Coverage.  Divorce is a qualifying event and upon divorce, a spouse covered on the other’s plan may no longer have health insurance coverage.   Through state or federal COBRA programs, the coverage formerly available may be extended for up to 3 years, for a cost.   There are strict deadlines to alert the plan of your divorce, and to avail yourself of continued coverage under COBRA.  Do not miss the deadlines and risk waiving continued coverage.   Prior to the divorce being finalized, explore the cost of continuing coverage under COBRA, as well as alternative insurance options.  Insurance may be available through  private insurance plans, professional or trade associations, public health insurance, or self-employment organizations such as  http://www.freelancersunion.org.

Name Change with DMV and the SSA.  Alert the DMV if you have resumed a prior surname.  Let the Social Security Administration know of your new status as well.  Bring your Judgment with you; it will have a clause permitting your name change.

Keep Tabs on the Paperwork.  I had a client  who had filed her paperwork after she thought she was divorced, and assumed that it had been handled properly.  10 years later, weeks prior to remarrying, she discovered that her divorce had never been processed.  She had to retain me to scramble and get her divorced before her wedding.  Obtain and keep a complete and official copy of the Judgment of Divorce, as well as the agreements and findings upon which it is based.  This is necessary if you want to remarry, upon the death of either party, or for revisiting any issues of the divorce, including a default or breach of your agreement, or issues of support or custody.

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photo by: hakee