States have been struggling with the alimony determination process since the advent of no-fault divorce.  Criticism of existing statutes has centered largely on inconsistencies in the amounts and durations of maintenance awards in apparently similar cases. The perception has been that, because of this, many awards may be inequitable. The apparent lack of predictability caused by these inconsistencies suggests that existing guidelines may be difficult to apply, making the statutes potential impediments to reaching workable settlement agreements. This problem has been compounded by the difficulty and expense associated with having to revisit and alter unworkable support levels post-divorce.

Alimony laws vary from state to state.  This article focuses on alimony in New York, where it is known as maintenance or spousal support.  Some states base alimony determinations on sets of factors designed to provide insight into the respective needs and support-paying abilities of the divorcing parties.  Others have chosen to use formulas to calculate maintenance, which would theoretically make the process faster, simpler, less expensive, more consistent and predictable and easier to administer.  Others have argued that, although this might be true, the simplicity of this methodology could often lead to unfair or unworkable outcomes.

In 2015, New York State passed a law that establishes maintenance guidelines that use a combination of these methods.  In situations in which child support determinations also need to be made, the new law integrates calculations of both forms of support (maintenance is calculated first, child support second).  It also calculates temporary (pendente lite) maintenance differently from post-divorce maintenance.

An overview of the guidelines is outlined below.  A word of caution – There are nuances in the law that this overview does not have sufficient space to discuss.  As mentioned in “Divorce Calculators,” note that calculations are only as good as the underlying data.   Also note that the new law is subject to interpretation by the courts.

If you are not from New York State, the methodology in your case will undoubtedly be different from that in New York.  Nevertheless, this article should provide insight into the issues with which you and your state will have to grapple.

Prior to the passage of the new law in New York, an income cap of $543,000 for the payor’s income was used for the calculation of temporary maintenance.   In the new law, the cap was lowered to $175,000 and also applied to post-divorce maintenance.

Where the payor of maintenance is also the non-custodial parent paying child support to the recipient spouse, the following steps are applied:

  • Step 1—20% of payor’s income up to $175,000  MINUS 25% of payee’s income.
  • Step 2— Payor’s income up to $175,000 PLUS payee’s income  X 40% MINUS payee’s income.
  • Step 3—The lower of the two amounts above is the guidelines figure.

Where no child support is being paid by the payor of maintenance to the recipient spouse:

  • Step 1—30% of payor’s income up to $175,000  MINUS 20% of payee’s income.
  • Step 2— Payor’s income up to $175,000 PLUS payee’s income  X 40% MINUS payee’s income.
  • Step 3—The lower of the two amounts above is the guidelines figure.

Where the payor’s income exceeds the $175,000 cap:

  • Step 1— Determine the guidelines amount up to and including the $175,000 cap using the appropriate formula.
  • Step 2—For income above the cap, the amount of additional maintenance, if any, would be within the discretion of the court, taking into consideration one or more of the numerous factors set forth in the statute.  These are also “deviation factors” (see discussion below).

There are “13” factors for temporary maintenance and “15” for post-divorce maintenance.

The following are the 13 temporary maintenance factors which are to be considered in determining the amount of maintenance, if any, on the payor’s income exceeding the $175,000 cap or where there is to be an adjustment or “deviation” in the guidelines amount:

(A) The age and health of the parties;

(B) the present or future earning capacity of the parties, including a history of limited participation in the workforce;

(C) the need of one party to incur education or training expenses;

(D) the termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;

(E) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;

(F) the existence and duration of a pre-marital joint household or a  pre-divorce separate household;

(G) 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;

(H) the availability and cost of medical insurance for the parties;

(I) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;

(J) the tax consequences to each party;

(K) the standard of living of the parties established during the marriage;

(L) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and

(M) any other factor which the court shall expressly find to be just and proper.

For post-divorce maintenance, the following 2 post-divorce maintenance factors are added to this list:

(N) the equitable distribution of marital property and the income or imputed income on the assets so distributed;

(O) the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

Under the new legislation, the court shall award the guideline amount of temporary or post-divorce maintenance or spousal support up to the $175,000 cap in accordance with the appropriate formula unless it finds that the guideline amount is “unjust or inappropriate.”

Where the guidelines amount of temporary or post-divorce maintenance would reduce the payor’s income below the self-support reserve for a single person (currently $15,890), there is an adjustment in the guideline amount.  Specifically, in these low income cases, the guideline amount is the difference between the payor’s income and the self-support reserve.  If the payor’s income is below the self-support reserve, there is a rebuttable presumption that no temporary or post-divorce maintenance shall be paid.

Where a payor has defaulted, or where the court is presented with insufficient evidence to determine income, the maintenance award shall be based upon the needs of the payee or the parties’ standard of living prior to the commencement of the divorce action, whichever is greater.

Following is the advisory schedule for post-divorce maintenance:

Length of the Marriage Percent of the Length of the Marriage For Which Post-Divorce Maintenance Will Be Payable:

  • Zero to 15 Years 15% to 30%
  • More than 15 to 20 years 30% to 40%
  • More than 20 years 35% to 50%

Maintenance terminates upon the:

a. death of either party, or

b. upon the payee’s valid or invalid marriage, or

c. upon traditional modification grounds, or

d. upon modification pursuant to cohabitation.

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