The New Temporary Maintenance Law

After a lengthy process, the New York Legislature has updated the divorce law. There are a number of significant changes. I will address them in series of future posts.

I'm beginning with the change to the temporary maintenance since it is effective for all divorces filed on or after October 26, 2015.

Please note we DO NOT use the term “Alimony” in New York.

This new law will only apply to divorces filed on or after October 26, 2015. The old temporary maintenance law will still apply to all divorces which were filed before October 26, 2015.

The main change to the law is how temporary maintenance is calculated. Sorry, but we got to do some math here.

First, there are two different calculations to be used: one for where child support is being paid, and one for where it is not.

Like the old law, who pays the support and who receives the support is not based on the sex of the parties. All that is important is who earns more money. The upshot is that a wife who makes more money than her husband will pay support to him.

The law uses the terms “payee” to describe the person making less money and “payor” to describe the person making more.

The old law had an income cap of $543,000 per year, now the court must cap the income of the payor spouse at $175,000. That number will go up every two years beginning in 2016. The court can go above that cap but must provided a detailed explanation.

When the payor spouse will be paying child support the court will use the following calculation:

(a) the court shall subtract twenty-five percent of the payee's income from twenty percent of the payor's income.

(b) the court shall then multiply the sum of the payor's income and (including the income cap) and the payee's income by forty percent.

(c) the court shall subtract the payee's income from the amount derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by clauses (a) and (c) of this subparagraph.

Example: Let's assume that Tony makes $100,000 a year. Gail, however, only earns $50,000. If we take twenty-five percent (25%) of Gail's income we get $12,500. Twenty percent (20%) of $100,000 Tony's income yields is $20,000. Subtracting $12,500 from $20,000 gets us $7,500 per year or $625 a month. Now, we have to do the second calculation, where we add the two incomes. That sum is $150,000. That number is now multiplied by forty percent (40%) to get $60,000. The court then subtracts the Gail's income, in this case $50,000 from the $60,000. The resulting number is $10,000. Now, we take the lower of the two calculations, which in this example, is $7,500 per year or $625 per month.

Let's look at the calculation when payor is not paying child support.

(a) the court shall subtract twenty percent of the payee's income from thirty percent of the payor's income.

(b) the court shall then multiply the sum of the payor's income and the payee's income by forty percent.

(c) the court shall subtract the payee's income from the amount derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by clauses (a) and (c) of this subparagraph.

Example: Using the example above, let's apply these new percentages. We take twenty percent (20%) of the Gail's income, which is $10,000. While thirty percent Tony's is $30,000. When we subtract one from the other we get $20,00 per year or $1,666.67 a month. The sum of the two incomes yields $150,000. When that is multiplied by forty percent (40%) the result is $60,000. Subtracting $50,000 from $60,000 gives us $10,000. The temporary maintenance award is the LOWER of the two numbers. But, in this example, the numbers are the same, so the temporary maintenance is $20,000 per year.

The prior statute was unclear as to whether to calculate child support before the maintenance is calculated. Now, it has been made clear that the maintenance calculation is done first.

For the purposes of child support, the payor's income will be reduced by the maintenance payment and the payee's income will be increased by that same amount.

The award of temporary maintenance ends upon the death of one of parties or upon divorce.

This is a new law, and like all new laws, we will have to await to see how judges will interpret it.