Since the passage of the new divorce laws in New York on October12th, 2010, the award of temporary maintenance (but not permanent awards) is to be computed by an arithmetic formula, leaving no room for the court's discretion in fashioning such awards as was the case prior to October 12th. Now the paying spouse's gross income (from all sources, which will include investment income as well as employment income) will be multiplied by 30% and the receiving spouse's gross income (if any) will be multiplied by 20% and subtracted from the 30% computation.
For example, if the paying spouse has gross income of $100,000, and the receiving spouse $30,000, maintenance will be fixed presumptively at $26,000 ($30,000 less $6,000). The second computation compels you to add both incomes together ($130,000) multiply by 40% to arrive at $52,000, subtract the receiving spouse's gross income of $30,000 to arrive at $22,000. The lesser of the two amounts will then be the proper amount to award for temporary support.
The court can fix the term of the temporary support according to certain enumerated considerations, but normally it will be awarded until after a trial is concluded, and a decision for permanent support reached by the court. The formula does not apply to permanent awards, and this amount will vary from case to case, and judge to judge based upon the totality of the respective financial condition of each spouse. In some cases the court will be permitted to deviate from the formula if the award can be regarded as unfair or unjust.
Our next blog will discuss the fixation of counsel fees under the new law.
