Temporary & Post-Divorce Maintenance

1.      Determining Each Spouse’s Income

To calculate the presumptively correct amount of temporary maintenance, we must first identify each spouse’s gross income.  We calculate gross incomes for the purpose of temporary maintenance in the same way we do for child support.  So, some of this may seem familiar.

The statute requires the addition and subtraction of many different types of income.  All of the additions and subtractions can be found on Steps I, II, & III of the New York Child Support Worksheet.  However, to come up with a very rough estimate for most cases, take the spouse’s adjusted gross income on their most recent income tax return, or the number in Box 5 of their most recent W-2 forms, and subtract the amount of FICA (i.e., medicaid and social security tax) actually paid by the spouse.  If you are having trouble determining how much FICA was owed and presumably paid, MoneyChimp.com provides a reliable and easy to use calculator.

2.      The Presumptively Correct Amount of Temporary Maintenance

The Legislature has provided a formula for determining the presumptively correct amount of temporary maintenance, but the formula only calculates temporary maintenance up to the statutory cap imposed on the monied spouse’s income.  In other words, if the monied spouse’s income is above the statutory cap (2016: $175,000), then there are additional steps which will need to be taken, as discussed below.

The EASY way to calculate temporary maintenance up to the statutory cap is by taking the incomes calculated above and putting them into Box 1 of this easy-to-use Support Calculator.  Alternatively, if you are more interested in knowing more about how the calculation is performed, the following calculator explains the calculation a little more thoroughly.

When the payor’s income is over the statutory cap, courts will look to the following factors to determine the appropriate amount of temporary maintenance over the cap:

• the length of the marriage;
• the substantial differences in the incomes of the parties;
• the standard of living of the parties established during the marriage;
• the age and health of the parties;
• the present and future earning capacity of the parties;
• the need of one party to incur education or training expenses;
• the wasteful dissipation of marital property;
• the transfer or encumbrance 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 SSL 459-a;
• the availability and cost of medical insurance for the parties;
• the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;
• the inability of one party to obtain meaningful employment due to age or absence from the workforce;
• the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
• the tax consequences to each party;
• marital property subject to distribution pursuant to DRL 236-B(5);
• the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
• the contributions and services of the party seeking temporary maintenance 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.

DRL 256-B(5-a)(c)(2).

3.      Deviating from the Presumptive Amount

The court can then “deviate” from the presumptive amount if the court finds that the amount would be unjust or inappropriate based upon a consideration of the following factors:

• the standard of living of the parties established during the marriage;
• the age and health of the parties;
• the earning capacity of the parties;
• the need of one party to incur education or training expenses;
• the wasteful dissipation of marital property;
• the transfer or encumbrance 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 the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;
• the inability of one party to obtain meaningful employment due to age or absence from the workforce;
• the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
• the tax consequences to each party;
• marital property subject to distribution pursuant to DRL 236-B(5);
• the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
• the contributions and services of the party seeking temporary maintenance 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.

DRL 256-B(5-a)(e)(1).

Thus, if maintenance is an issue in your case, it will be important to have an attorney who will help prepare your Statement of Net Worth, scrutinize the other parties’ Statement of Net Worth, and argue for a deviation from the presumptive amount.

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III.      WHAT IS POST-DIVORCE MAINTENANCE

 

A.      How Long is Post-Divorce Maintenance?  Durational v. Permanent Maintenance

How long a party will receive maintenance depends on the facts of each individual case; however, as a general rule of thumb, it is safe to assume that a party will be entitled to receive maintenance (temporary and post-divorce combined) for 1/3 to 1/2  of the length of the marriage.  As discussed above, this seems to be a length of time that many courts find reasonable to enable a former spouse to become self-supporting in the manner and lifestyle in which he or she has been accustomed during the marriage and in which the or she should continue to enjoy. See generally, Carrozzo v. Carrozzo, 609 N.Y.S.2d 123, 123 (4th Dept. 1994).  However, in 2015, the Legislature passed “advisory” guidelines that it suggested courts to consider in determining the length of maintenance:

Length of the marriage	Percent of the length of the marriage for which maintenance will be payable
0 up to and including 15 years	15%–30%
More than 15 up to and including 20 years	30%–40%
More than 20 years	35%–50%

Whenever there is a ticking clock associated with the maintenance award, it is described as “durational.”

However, self-sufficiency is not always feasible, particularly when an older recipient has been out of the labor market for many years. See generally, Seamans v. Seamans, 199 A.D.2d 790, 791 (3d Dept. 1993).  In this situation, the Appellate Division, First Department, has articulately stated that:

A time limitation on maintenance should be imposed solely to enable the dependent spouse to obtain training to become financially independent, or to allow the dependent spouse to restore his or her earning power to a previous level.  When the dependent spouse is unlikely to become completely self-supporting, durational limits on maintenance are inappropriate.  Lifetime maintenance may be awarded when the dependent spouse is incapable of future self-support, has no skills or training, or is mentally or physically ill.  The appellate courts of this state have often granted permanent maintenance to dependent spouses who had psychiatric problems, had been out of the work force for a number of years, lacked advanced degrees, and were middle-aged.

Michelle S. v. Charles S., 683 N.Y.S.2d 89 (1st Dept. 1999) (internal citations and quotations omitted) (emphasis added).

Therefore, non-durational maintenance or “permanent maintenance” may be appropriate in situations where the payee is simply unable to be self-supporting in the manner and lifestyle in which the payee has been accustomed during the marriage and in which the payee should continue to enjoy. See,

• • Carrozzo, 609 N.Y.S.2d 123 (4th Dept. 1994) (five-year durational maintenance was error and replaced with non-durational maintenance where payee was approximately 52 years old at the time of trial, had not worked outside the home since she was 18 years old, never graduated from high school, and suffered from physical and psychological impairments that made her unemployable);

• • Fischer v. Fischer, 606 N.Y.S.2d 494 (4th Dept. 1993) (three-year durational maintenance was error and replaced with non-durational maintenance in light of the parties’ respective incomes; the nearly 35-year long marriage; payee being 56 years old with a lack of education and work experience resulting from the parties’ decision that payee would assume the role of full-time homemaker and caretaker of the children; and the unlikelihood that payee could become self-supporting);

• • Fleitz v. Fleitz, 223 A.D.2d 946, 948 (3d Dept. 1996) (five-year durational maintenance was error and replaced with non-durational maintenance where payee was 42 years old; had a lack of earning capacity; withdrew from the labor market to be wife, mother, and homemaker; forewent educational opportunities occasioned by her withdrawal from school to accompany payor to California where he sat for dentistry boards; and payor’s tax free income);

• White v. White,  204 A.D.2d 825, 828 (3d Dept. 1994) (ten-year durational maintenance was error and replaced with non-durational maintenance where the trial court found payee to be unable to be self-supporting in the manner and lifestyle to which she has been accustomed during the marriage and which she should continue to enjoy).

However, there are events, other than a set date in the future, which will terminate maintenance.  Such events include the death of either party or the payee’s remarriage, whether valid or invalid. DRL 236-B(6)(c).  DRL 248 further addresses what is to happen to an order of maintenance upon a payee’s remarriage.  DRL 248 states that maintenance shall terminate upon the application of the “husband,” and of proof of the “wife’s” remarriage.  It further states that, where the husband proves that the wife is habitually living with another man and holding herself out as that man’s wife, although not married to him, the Court may terminate maintenance.

Notably, while DRL 248 specifically refers to “husband” and “wife” and the Legislature has not chosen to amend DRL 248 to make it gender neutral, at least one Court has interpreted the statute as such to save its constitutionality from an attack based upon gender discrimination. Wood v. Wood, 428 N.Y.S.2d 136 (Family Court, Queens County 1980).

Furthermore, although the burden of proof associated with these events tends be quite heavy, a party may be able to modify, either upwards or downwards, a maintenance award based upon:

• the payee’s inability to be self-supporting,
• a substantial change in circumstances,
• termination of child support, or
• financial hardship upon payor.

DRL 236-B(9)(b)(1); see also, McGuire v. McGuire, 606 N.Y.S.2d 440 (3d Dept. 1994).

Finally, if the parties agree to an award of maintenance, they can also agree to end maintenance on any number of events, including retirement or the payee’s “cohabitation” with another individual.  However, BEWARE:

 

• • FIRST: To the disdain of many payors, courts have been notorious in interpreting the phrase “cohabitation.”  A drafting attorney must be more than diligent in defining “cohabitation” to ensure compliance with the relevant, and relatively recent, appellate decisions.

• SECOND: if the agreement includes a list of events on which maintenance will terminate, but fails to include, let’s say, the payee’s remarriage, then the event which was not included will not terminate maintenance. Deangelis v. Deangelis, 285 A.D.2d 593 (2d Dept. 2001).  In such case, the payor will likely be considered to have implicitly agreed to maintenance post-remarriage!  The relevant latin phrase here is: Expressio Unius Est Exclusio Alterius (“the expression of one thing is the exclusion of the other”).

B.      How much is Post-Divorce Maintenance?

As discussed above, post-divorce maintenance is not the same as temporary maintenance.  While there is a formula for calculating temporary maintenance, there is no formula for calculating post-divorce maintenance.

Thus far, it seems, Courts have been reluctant to use the presumptive amount of temporary maintenance as the amount for post-divorce maintenance.  Courts seem to be finding that the actual, reasonable needs of the payee are less than the presumptive amount of temporary maintenance.  That is not to say, however, that the presumptive amount of temporary maintenance is never used to determine post-divorce maintenance.

Ultimately though, the amount of post-divorce maintenance will greatly depend on what is reasonable, based upon the marital standard of living and the ability of the payor to pay.  These are questions of fact which will require proof and persuasive argument.  Thus why it is important to have a diligent attorney that you can trust to focus and prepare your case.

Don’t forget, when determining “how much” maintenance is, maintenance is deductible to the payor and includible as income to the payee on their federal and state income tax returns.  On one hand, this is good for the payor, as he or she now receives a substantial deduction on their taxes; on the other hand, it could be devastating to the payee, who may no longer qualify for certain things, such as an Earned Income Credit.  A keen awareness of these tax implications is critical.

If you have any questions or concerns, click the “Contact Us” link above, or call (315) 422-1311. If you would like some information regarding our Collaborative Family Law, you can click here.