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Revolutionary Law Change in New York as of June 2015
November 17, 2015
A new New York law has passed governing the amount of post-divorce spousal support or maintenance as well as distribution of the value of an education or license or degree or enhanced earning capacity.
This law drastically changed how a Court will determine spousal support AFTER a judgment of divorce has been entered. Prior to this law, says a top New York Divorce and Custody lawyer Lisa Beth Older, the Court had the sole discretion as to whether as how much support would be paid to a spouse after a divorce trial.
As to equitable distribution, a breaking phenomenon in the new law which is unrelated to spousal maintenance is that is that a court no longer has to enhanced earning capacities derived from professional license. Before this law the Court had to consider value and distribute said value between the parties a spouse’s enhanced earning capacity from achieving a license, a degree, or the enhancement of their career.
“One of the initiators of the law was Justice Sunshine who sits in Brooklyn Supreme Court and decides many Brooklyn Divorce Lawyer’s cases” says Lisa Beth Older, Esq., one of New York's top Divorce and Custody lawyers.
As to calculating amount and duration of temporary and final awards of spousal support or maintenance, formally known as alimony this formula dictates how a case should be settled ort determined after trial. The Courts may deviate from the formula under certain conditions. It is similar in nature to the New York Child Support Standards Act in 1989.
The following is the formula to be considered in arriving at the fair and proper amount:
- There is a “cap” on the payor’s income used for the maintenance formula of $175,000, but the Court can increase the cap where appropriate and just. This lowers the cap from $543,000 to $175,000 as to post-divorce maintenance awards.
- There are two formulas. One of them is for child support that will be paid and one where child support will not be paid. Those formulas are as follows: a. With child support where the maintenance payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance; maintenance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
- You calculate maintenance and then Child support is calculated using the income of the payor after subtracting the maintenance and the income of payee income including maintenance award. The court may adjust the guideline if it finds it to be unjust or inappropriate after consideration of factors which must be set forth in their final decision on the case. If income over the cap, additional maintenance may be awarded again to be set forth in the Court Decision on Spousal Support.
- As to temporary maintenance, the court can allocate the obligation for family expenses while the divorce action is pending.
- For the purpose of final post-divorce maintenance the Court can include income-producing property to be equitably the distributed.
- New factors in post-divorce maintenance will include: termination of child support, income or imputed income on assets being equitably distributed, etc.
- The duration of post-divorce maintenance is governed by percentages. For marriages of zero to 15 years, maintenance is 15% to 30% of the length of the marriage; for marriages of more than 15 up to 20 years, maintenance is 30% to 40% of the length of the marriage; for 20 year or more marriages, maintenance would be awarded for 35% to 50% of the how long you were married. However, in certain circumstances non durational maintenance may be ordered.
- Duration of maintenance must consider anticipated retirement assets, benefits and retirement eligibility age.
- Retirement will be a ground for modification of post-divorce maintenance if significant.
The formula takes into account whether or not the spouse is charged with paying child support.
The amount paid is governed by the length of the formula and the duration of the award to be paid is based upon the length of the marriage.