Identifying marital property and determining how to equitably distribute that property is very often made far more difficult when one spouse is financially dependent on the other. In order to prevent the “breadwinning” spouse from leaving the other spouse without a source of support, New York authorizes courts to award temporary maintenance while a divorce is pending. A court in the Rochester area recently considered a wife’s request for temporary maintenance in an ongoing divorce matter. The court’s April 2016 ruling in Cooper v. Cooper reviews the temporary maintenance guidelines, analyzes the parties’ assets, and assesses whether the payment of maintenance would even be possible at that particular point in time.
The guidelines for temporary maintenance are set forth in § 236(B)(5-a) of the New York Domestic Relations Law. Prior to January 1, 2016, the “income cap” for temporary maintenance calculations was $175,000 per year. If the payor’s income is less than or equal to that amount, and the payor is also paying child support to the payee, the guideline amount of temporary maintenance (TM) is the lesser of 20 percent of the payor’s income (Pr) minus 25 percent of the payee’s income (Pe), which could be written as TM = (Pr × 20%) – (Pe × 25%), or the difference between 40 percent of the sum of the parties’ income and the payee’s income, or TM = ((Pr + Pe) × 40%) – Pe. Child support is deducted from the payor’s income and included in the payee’s. If the lesser of the two amounts is less than zero, the guideline amount is zero dollars.