New post-judgment spousal maintenance guidelines in New York State-Answers to the 5 most frequently asked questions

On September 25, 2015, New York State Governor Cuomo signed into law the new post-judgment maintenance guidelines bill ("new guidelines") which will revolutionize the manner in which the amount and duration of post-judgment spousal maintenance awards will be determined by attorneys and the Courts. Prior to the adoption of this bill, the amount and duration of maintenance were determined by a number of statutory factors without any precise methodology or formula. The new guidelines have introduced various mathematical formulas to provide the Family Law practitioner and the Courts with a greater certainty in arriving at an appropriate range for the amount and duration of spousal maintenance based upon income and the length of marriage measured up to the date of commencement. Notwithstanding the formula, arguments by either counsel can still be made that the award of maintenance is "unjust and inappropriate", requiring the Court to fashion an award that does not comport with the new guidelines. This article will highlight the most frequently asked questions from clients and other attorneys regarding the new guidelines.

(1) Q. When will the new guidelines become effective?

A. The new guidelines will become effective one hundred and twenty (120) days from September 25, 2015, the date that Governor Cuomo signed the bill into law. Therefore, the new guidelines will be effective on January 25, 2016. The new guidelines will not be applicable to any agreements or orders issued prior to January 25, 2016 or any proceedings commenced prior to January 25, 2016. Further, the new guidelines will not be a basis for a modification of a maintenance award issued prior to January 25, 2016.

(2) Q. What is the formula to determine the amount of post-judgment maintenance for a spouse paying both spousal maintenance and child support pursuant to the new guidelines?

A. In order to answer this question, please see the short hypothetical below:

John Doe, the non-custodial parent earns gross income of $129,941. Jane Doe, the custodial parent, earns $54,142. For this hypothetical, assume John will be responsible for paying spousal maintenance and child support to Jane.

CALCULATE INCOME OF JOHN AND JANE PER CHILD SUPPORT STANDARDS ACT(CSSA)

At the outset, you must determine the respective incomes of the parties. Pursuant to the statute, "income" shall constitute income as defined in the Child Support Standards Act ("CSSA") without subtracting maintenance paid to a party spouse in an action. It will also include "income from income-producing property distributed or to be distributed in the action".

John's gross income is $129,941. Pursuant to CSSA, social security and medicare taxes (which constitutes 7.65% of his income) must be deducted from his gross income as demonstrated below:

$129,941 x .0765= $129,941 - $9,940.48= $120,000

Jane's gross income is $54,142. Pursuant to CSSA, social security and medicare taxes (which constitutes 7.65% of her income) must be deducted from her gross income as demonstrated below:

$54,142 x .0765= $54,142 - $ 4,141.86= $50,000.

NEW GUIDELINES CALCULATIONS:

Once the CSSA income for both parties are calculated, we can apply the new guideline formula to determine post-judgment spousal maintenance. For cases in which the payor spouse will be paying spousal maintenance AND child support, the following formula will be applicable:

STEP 1: 20% of Payor's Income up to $175,000 MINUS (-) 25% of Payee's Income

Applying the formula to this hypothetical would result in the following:

20% of $120,000= $24,000

- 25% of $ 50,000= $ 12,500

$12,500

STEP 2: Payor's Income up to $175,000 PLUS (+) Payee's income TIMES (x) 40%

MINUS (-) Payee's Income

Applying this formula to this hypothetical would result in the following:

$120,000 + $50,000 x 40%= $170,000 x 40%= $68,000- $50,000= $18,000

STEP 3: Take the lower of the numbers from Step 1 and Step 2 which will be the guideline amount of post-judgment maintenance

In this example, the lower of the numbers would be $12,500 which would be the guideline amount of maintenance unless the Court deemed it "unjust and inappropriate"

(3) Q. How would maintenance be calculated under the guidelines if there is no child support being paid by the maintenance payor OR if the maintenance payor is the custodial parent?

A. In the example above, let's consider John Doe as the custodial parent who is responsible for paying spousal maintenance to Jane Doe. The formula changes a bit:

STEP 1: 30% of Payor's income up to $175,000 MINUS (-) 20% of Payee's Income.

Applying this formula to the hypothetical above provides the following result:

30% of $120,000 - 20% of $50,000= $36,000 - $10,000= $26,000

STEP 2: Payor's income up to $175,000 PLUS(+) Payee's income TIMES (x) 40%

MINUS Payee's Income

Applying this formula to the hypothetical above provides the following result:

$120,000 + $50,000= $170,000 x .4= $68,000- $50,000= $18,000

STEP 3: Take the lower of the numbers from Step 1 and Step 2 which will be the guideline amount of maintenance

In this example, the lower of the numbers would be $18,000 which would be the guideline amount of maintenance unless the Court deemed it "unjust and inappropriate".

(4) What if the payor's income exceeds $175,000? How is spousal maintenance pursuant to the new guidelines determined?

If the payor spouse's income is $200,000, the first step would be to calculate the maintenance up to the cap of $175,000 as we have done in the previous example. The Court thereafter has the discretion to take into consideration the additional $25,000 above the cap upon consideration of the following factors:

(1) The age and health of the parties

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

(3) The need of one party to incur education or training expenses;

(4) The termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;

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

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

(7) 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 of the social services law;

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

(9) 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;

(10) The tax consequences to each party;

(11) The standard of living of the parties established during the marriage;

(12) 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;

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

(14) 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

(15) Any other factor which the Court shall expressly find to be just and proper.

(5) Q. How does the new guidelines determine the duration of post-judgment maintenance?

A. The new guidelines has furnished an advisory durational formula for post-divorce maintenance which is directly linked to the "length of marriage" which is defined as running from the date of marriage until the date of commencement of the divorce action. The following is the advisory schedule for post-divorce maintenance:

Length of Marriage

% of length of 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%

For example, if you are married seventeen (17) years, you could be responsible for paying between 5.1 years and 6.8 years of maintenance.

At Rieger & Fried, LLP, we represent individuals in deteriorating and in some cases abusive marriages who need to move on with their lives. At Rieger & Fried, LLP, we are not just aggressive litigators, but offer our clients compassion and understanding in these trying times. If you have any questions that need answers about your particular situation, we invite you to call our office and schedule an appointment or consultation. Call us at (516) 712-2268