Instant Update on the Law – New Maintenance Statute
The new maintenance statute
A Brief Synopsis by Steven L. Abel (first version posted October 21, 2015)
The new law governing post-divorce maintenance went into effect on Jan. 23, 2016.
TWO FORMULAS
The law contains two formulas for calculating the amount of maintenance and an advisory schedule for duration. One formula is for childless couples, the other for couples with children.
WHAT IS INCOME
Income is the same as Child Support Guidelines income, except that the maintenance to be paid using the formulas is not deducted from the payor’s income. The design of the law is that maintenance is calculated before child support. If the new law requires a maintenance payment, that amount is then subtracted from the payor’s income in calculating child support and added to the recipient’s income for child support add-on proportions.
FOR A CHILDLESS COUPLE, to calculate the presumptive guideline amount:
| A. Take 30% of the income (up to $178,000) of the higher income spouse ($110,000): | $ 33,000.00 |
| B. Subtract 20% of the income of the lower income spouse ($25,000): | $ (5,000.00) |
| C. = | $ 28,000.00 |
| D. Calculate 40% of the combined income of the spouses ($135,000): | $ 54,000.00 |
| E. Deduct the lower income ($25,000) from the 40% amount (D.): | $ 29,000.00 |
| The presumptive award amount is the lower of (C.) and (E.): | $ 28,000.00 |
(This formula is also used in the somewhat unusual situation where the maintenance payor is the custodial parent entitled to child support from lower income parent.) FOR A COUPLE WITH CHILDREN, to calculate the presumptive guideline amount:
| A. Take 20% of the income (up to $178,000) of the higher income spouse ($110,000): | $ 22,000 |
| B. Subtract 25% of the income of the lower income spouse ($25,000): | $ (6,250) |
| C. = | $ 15,750 |
| D. Calculate 40% of the combined income of the spouses ($135,000): | $ 54,000 |
| E. Deduct the lower income ($25,000) from the 40% amount (D.): | $ 29,000 |
| The presumptive award amount is the lower of (C.) and (E.): | $ 15,750 |
Child Support then continues to be calculated exactly as before under the Child Support Guidelines, except that the maintenance amount is deducted from the payor’s income and added to the payee’s income.
INCOME CAP
The new law specifies an income cap for the payor’s income of $178,000 as of Feb. 1, 2016 (NOT the $141,000 specified for child support nor combined income). Using higher incomes is a discretionary function. For maintenance the statute states:
“(2) for income exceeding the cap, the amount of additional maintenance awarded, if any, shall be within the discretion of the court which shall take into consideration any one or more of the factors set forth in subparagraph one of paragraph e of this subdivision; and
(3) the court shall set forth the factors it considered and the reasons for its decision in writing or on the record. Such decision, whether in writing or on the record, may not be waived by either party or counsel.”
For child support, the statute states:
“(3) Where the combined parental income exceeds the dollar amount set forth in subparagraph two of this paragraph, the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage.”
Because the maintenance statute omits any reference to using the formulas for income above the $178,000 cap, the Courts may be reluctant to using the formulas in that situation.
DURATION
For marriages of zero(?) to 15 years, maintenance would be awarded for 15% to 30% of the length of the marriage; for marriages of more than 15 up to 20 years, maintenance would be awarded for 30% to 40% of the length of the marriage; and for marriages of more than 20 years, maintenance would be awarded for 35% to 50% of the length of the marriage. This part of the law is labeled “advisory,” whatever that means. But non-durational maintenance is permitted if it’s appropriate.
DEVIATION
Couples can agree to any deviation they desire and no explanation is required. Judges may also deviate but they must explain why.
RETIREMENT
In determining the duration of maintenance, the court may consider anticipated retirement assets, benefits and retirement eligibility age. Actual or partial retirement will be a ground for modification of post-divorce maintenance if it results in a substantial diminution of income.
NEW FACTORS
New factors in post-divorce maintenance will include: termination of child support, and income from income-producing property (stocks, bonds, rental real estate) being equitably distributed.
ENHANCED EARNINGS
Enhanced earnings will no longer be “distributed” but their value may be “considered” by the court in how other marital property is divided. How this will actually play out is one of the few major mysteries of the new law.
DOING THE MATH
While the formulas are not so complicated that you can’t do the math with a calculator, it’s really bit much when both child support and maintenance are involved. I have revised my Child Support Worksheet to make them a combined Maintenance & Child Support Worksheet, just click here to download your copy. But I also think that now is the time to buy, learn and use Family Law Software. Besides handling the basic calculation easily, it has pages for tax analysis that are just amazing. Go to http://www.familylawsoftware.com/contact.html or call 877.477.5488.
A free alternative is the calculator provided in Joy Rosenthal’s website at: http://www.joyrosenthal.com/new-york-maintenance-child-support-calculator/
Additional Examples
| CHILDLESS COUPLE | |
| A. Take 30% of the income of the higher income spouse ($160,000): | $48,000 |
| B. Subtract 20% of the income of the lower income spouse ($80,000): | ($16,000) |
| C.= | $32,000 |
| D. Calculate 40% of the combined income of the spouses ($240,000): | $96,000 |
| E. Deduct the lower income ($80,000) from the 40% amount (D.): | $16,000 |
| The presumptive award amount is the lower of (C.) and (E.): | $16,000 |
| SAME COUPLE WITH TWO CHILDREN, | |
| A. Take 20% of the income of the higher income spouse ($160,000): | $32,000 |
| B. Subtract 25% of the income of the lower income spouse ($80,000): | ($20,000) |
| C.= | $12,000 |
| D. Calculate 40% of the combined income of the spouses ($240,000): | $96,000 |
| E. Deduct the lower income ($80,000) from the 40% amount (D.): | $16,000 |
| The presumptive award amount is the lower of (C.) and (E.): | $12,000 |
| In addition, Child Support under NY’s guidelines would be . | $37,583 |
| TOTAL SUPPORT = | $49,583 |
| Pre-tax incomes: $160,000 minus $49,583 = | $110,417 |
| $80,000 plus $49,583 = | $129,483 |