Concerns Linger over Temporary Maintenance Guidelines in New York’s No-Fault Divorce Law

We recently posted about New York’s latest no-fault divorce law, which would allow couples to obtain a divorce without having to claim one of the traditional grounds for divorce.  Needless to say, the law will bring about major changes for the state of New York.  In that article we mentioned how the law is beset by many challenges regarding calculating maintenance or spousal support.

The maintenance provisions in question are contained in the bill A.10984/S.8390.  The intended purpose of the bill is to provide guidelines for courts when awarding temporary maintenance.  Temporary maintenance is spousal support which is paid for a certain defined period of time.  At the end of the specified time, the maintenance ends automatically.

Temporary maintenance is also called “durational” or “periodic” maintenance.  There are several other types of maintenance awards, including permanent maintenance and  rehabilitative maintenance.  The bill only addresses temporary maintenance and does not really make any changes to final awards for permanent maintenance.  In the state of New York the duration of the temporary maintenance will be determined by the length of the marriage.

Now, the main dispute over New York’s maintenance bills has to do with a clause that would allow a judge to consider “additional factors” when calculating temporary maintenance requirements.  Some of these factors may include the type of lifestyle that each spouse leads, various comforts that the couple was accustomed to prior to divorce, and each spouse’s employment status.

The bill does include a complex equation which will help to calculate the amount of temporary maintenance.  However, the “additional factors” clause seems to run counter to any amount of stable prediction that the equation might provide.  Many critics feel that the clause creates a marsh of open-ended inquiries that judges might have difficulty navigating.

As mentioned in our previous post, a commission has been appointed to research maintenance standards in the state of New York.  Still no word of an official report yet.

Like any other legal rule involving numbers and calculation, the temporary maintenance formula itself is needlessly complicated.  For those of you who are interested, the equation is as follows:

  • Temporary Maintenance is only awarded when the income of the “less-monied” spouse is less than two thirds of the spouse with the higher income.
  • The court will then award temporary maintenance in the amount of:
    • 30% of the paying spouse’s income, minus 20% of the recipient’s income, OR
    • 40% of the spouses’ combined income, minus the total income of the recipient spouse
  • The amount may be adjusted in instances where the paying spouse has an income greater than $500,000

So if the paying spouse has an annual income of $90,000 a year, then a temporary maintenance award is only available if the non-monied spouse is less than $60,000 (less than two thirds).  After that the court will continue the calculation to render an appropriate award amount.

Or, if you’re like me (allergic to numbers), you can simply punch and crunch the numbers using an online New York temporary maintenance calculator to see what a possible outcome might look like.  So let’s say that the spouses have incomes of $90,000 and $59,000.  Using the calculator, the result is a spousal award of $600/year.

Sounds simple enough right?  That is, until the court decides that the calculated award is “unjust” or “unfair”.  In that case they will have to go back and use the additional statutory factors to come up with a new figure and/or duration for the temporary maintenance.

That folks is where the problem lies.

To me, this is basically like saying, ok, we will provide you with a map and some directions to your destination.  If you don’t like the route, simply toss it out the window and find your way around till you get there.  If you get lost, here’s a list of roadside factors for you to consider.

So on the one hand, this new bill does at least provide a somewhat workable road map for judges to determine maintenance.  At least there’s a calculation involved.  However, the fact is that many judges still remain reluctant to use the additional factors.  This means that, although the no-fault law makes divorce somewhat easy, all those small little details are still just as complicated.  Hopefully for New Yorkers, these confusions are just temporary.

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8 Responses to “Concerns Linger over Temporary Maintenance Guidelines in New York’s No-Fault Divorce Law”


  1. 1 Michael

    Will the court consider when a man marries a woman who had four children from her first husband and her new husband has supported her and her children for 11 years of marriage and two years before when calculating “Maintenance”? The “step children” are now in their young adult ages, 17,19,21,23. Where does it say where a none biological father has to “support” his soon to be ex-wifes children? Once again, true to NYS divorce laws and the outcome, almost all fathers/husbands get raped by biasness toward women in general. Regardless of who filed first (in this case the husband)the outcome always is the same. The man gets screwed!

    Thanks

  2. 2 Jay

    Hi Michael, it looks like it would depend on your respective incomes (we’re talking temporary maintenance here). See the test above, if you are the “less-monied” spouse or if your spouse does not meet the percentage requirements, you may not have to pay temporary maintenance at all.
    If the court does decide to use the “Additional Factors test” (http://www.legalresourcenetwork.org/calculator/factors.html), then factor 10, “The Care of Children or Stepchildren” would address whether you’d have to render support for stepchildren. At this stage it is still hard to tell though exactly how much maintenance, if any, would be required. Thanks!

  3. 3 Michael

    “…… if your spouse does not meet the percentage requirements, you may not have to pay temporary maintenance at all.” She has no job. What does this mean “does not meet the percentage requirements”? With no job this means she meets no percentage at all except “0”% so what does this mean to me? AND, she only has one minor child out of the four that are living in the house now but I believe she is still receiving child support from her first husband for the three youngest, 17, 19 and 21. Again, they have a biological father who is primarily responsible for their welfare. Also, when I was shopping for a divorce lawyer all of them clearly explained to me I had “no obligation” what so ever to any of them because I did not adopt them and none are “our” biological children. Now, I am being told I may have to “support” her children???? That my friend is another flaw in this one sided bias toward woman generalized notion toward all men that we are always the blame and bad guy and the woman are sweet innocent victims.
    If I had time I would explain to the world just exactly the events that lead up to my decision for divorce including a male neighbor getting too involved with our marital concerns and decisions. Mind you, “he’s just a friend” but he is into her like a wolf on a sheep!
    Crap. I am about ready to just walk away from all of this and let God do what ever He pleases. I am already up to my forehead in debt from lawyers, house payments, my own rent, credit card bills, paying for utilities … Sorry for rambling on … just is getting to me the way NYS divorce laws are so one sided.

  4. 4 Michael

    I really believe because I am the husband and the male species of this earth that no matter what I will get persecuted unmercifully and suffer total loss of my assets, wages, dignity, and self worth even though I was the one who filed first because of her verbal cruelty and suppressive behavior toward me. I even believe my lawyer has no real concern for what happens as long as he gets his money. So far, $7500 spent on this lawyer and not one word as to what I may expect, a strategy, a plan of action, or anything. Regardless, no matter what NYS lawmakers do to change the divorce laws, nothing changes. The law is bias toward the female and prejudiced toward the male no matter who is at fault.
    This is my third divorce from another woman who felt it was time to change her man and trade him in for a younger one. Sounds as if I am whinnying and you are right.
    Next step, bankruptcy!

  5. 5 Ron

    I truly can feel your pain, Michael, I am in the same boat as you. I am seeking a divorce from a woman of whom I had a temporary restraining order against and upon the advise of an attorney dropped(big mistake). I have numerous recordings of her threatening to stab me with a knife, burn me with cigarettes, admitting to punching and kicking me, swearing and belittling me, and the final breaking point…threatening to punch herself in the face and call the police and say I did it. I realized at that point, I needed to leave or risk losing my daughters forever as I would be labeled an abuser. Even with the recordings, I have to pay maintenence to a woman who was more than capable of working but would not go to work. The lawyers have said you should have made her…please explain how to make an adult go to work when you are at work in order to pay the bills. Also, she obtained a college degree five years ago..again, her education doesn’t get taken into consideration. When I ask my attorney why I have to pay for at least 5 years(they are seeking 6 1/2)..he tells me, “Well Ron, they could ask for ten ..half the marriage.” Sometimes it feels as though he is working for her side. Also, we can never all be in the same room together so essentially I am paying him to meet at the courthouse, talk to her lawyer, find out what they want, then he comes tells me and then we go home with no resolve. We have been to “court” 6 times and have determined that our 16 year old will live with her mother and visit me, and I will pay child support..That only have cost me $5,000..where is the justice in that?. An average college education takes 5 years for a young person to obtain which is the level of education most payor’s have…why should anyone ever have to pay longer than that to a payee?..Something is definately wrong here in NYS. Also, what does a person have to do to get to see a judge in a divorce? Thus far, I haven’t even seen a courtroom. Good luck to you, Michael..I will be praying for you!

  6. 6 Geoff

    There are significant flaws in the maintenance calculation. My wife currently makes no income so the calculation in my case produces $18000 per year. This is after child support is awarded of $20000 per year. How is that possible? It is a stupid calculation and in my opinion the child support should be backed off after the calulation is made as opposed to on the front end. There is no consideration to the fact that the taxes are taken out on the front end of my paycheck also before maintenance is paid. Sure I can claim it when I file my taxes, but that leaves me strapped. In my case she would take home more than 1/2 of my entire paycheck. It does not seem right.

  7. 7 LOL

    I have read everyone’s posting and sympathize but the flip side it that I have been Married 18 years to a man who decided he fell in love with a 21 year old. We have 3 children together and due to the fact he did not want our children raised by daycare providers I stayed home 10 years until all the children were in school. Then I went back to school. My career is just starting out and I make 17K a year why should I not have help ( temporary) from him including child support. He played so why should he not pay? Even if it is half his paycheck.

  8. 8 kelly

    I am a woman of divorce I could have seeked maintenance, but I didn’t, I wanted the divorce. I struggle every day with money and no job so I can understand what some women are arguing about. But on the flip side we chose to not go to school thinking marriage was forever, shame on those woman and my self. I have a friend who needs a divorce he is a batter husband emotionally abused every day he breathes, His crazy other half stays for the money and only the money. He went to an attorney and it was figured out on this whole NY maintenance worksheet he would have to pay her half of his paycheck, along with half of his pension…..This is not fair at all. There needs to be some stipulations to this incredibly biased law. This law only protects women. Not the men. I feel for all you good guys out there. I see everyday what this woman puts him through. This justice system is in complete shambles.

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