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.
If a payor makes $50,000 per year (Pr), and a payee makes $12,000 per year (Pe), the two figures would be:
– ($50,000 × 20%) – ($12,000 × 25%) = $10,000 – $3,000 = $7,000
– (($50,000 + $12,000) × 40%) – $12,000 = $24,800 – $12,000 = $12,800
The guideline temporary maintenance amount would therefore be $7,000 per year. The calculations are different if the payor is not also paying child support, but these are the calculations used by the court in Cooper.
The parties in Cooper were married for nine years and had three children, all of whom lived with the wife after the separation. Based on financial information provided by the wife, the court imputed her income as $12,000 per year for part-time work. It imputed an income of $95,000 per year to the husband. The court noted that the guidelines would require $16,000 per year in temporary maintenance payments, but the wife was asking for more than $21,000.
Courts are permitted to deviate from the guideline’s temporary maintenance amount if they find that amount to be “unjust or inappropriate,” under circumstances outlined in § 236(B)(5-a)(h)(1). The court in this case found that a “realistic economic perspective” of the parties’ financial situations would make a temporary maintenance award both unjust and inappropriate. Taking the husband’s other expenses, including taxes and child support, into account, the court found that the guideline amount of temporary maintenance would “grossly skewer the income differentials between this couple.” It therefore awarded no temporary maintenance at all.
For the past 30 years, divorce attorney Ingrid Gherman has helped clients in New York City deal with complicated and difficult legal questions related to divorce, such as spousal maintenance and equitable distribution of property. To schedule a confidential consultation to see how we can assist you, contact us today online or at (212) 941-0767.
More Blog Posts:
Spousal Maintenance Obligation Reduced by New York Appellate Court, Based on Finding that Obligor Would Be Unable to Afford It, New York Divorce Attorney Blog, May 31, 2016
Brooklyn Court Rules on Divorce with One Spouse in Prison for Assaulting the Other, New York Divorce Attorney Blog, March 28, 2016
Termination of Spousal Maintenance in a New York Divorce, New York Divorce Attorney Blog, March 21, 2016
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