In 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, then 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 income 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 now uses a $2228,000 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 online.
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 25, 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.