The old law in New York for temporary or pendente lite (Latin for while the case is pending) maintenance, prior to the 2010 revisions, was that temporary maintenance was supposed to “tide over” the spouse with less income (the “non-monied” spouse) while the divorce case was ongoing. There was no formula for the calculation, rather it was to be based on subjective criteria which was outlined in the statute. The 2010 law that is in effect now, however, contains a guideline formula, much like we have in place for child support (although the formulas and amounts differ from child support) to give guidance as to what the presumptively correct amount of temporary maintenance that a court should order. An amount of temporary maintenance can be agreed upon by the parties in a case with the help of their mediator or lawyers. Often, however, Judges are called upon to decide the amount, and that is where the statute must be considered. It is important to note, however, that the temporary maintenance amount is not what is ordered at the conclusion of the divorce. That maintenance, if there is any, is usually durational in nature and does not have a specific formula to guide in its determination.
The temporary maintenance law is in Domestic Relations Law Section 236(B)(5-a). Each sides gross income, as reported in the most recent federal tax returns, after the deduction of FICA and any applicable local taxes (city only). The lesser of two calculations is supposed to be the guideline amount of temporary maintenance. Initially, a cap of of $543,000.00 (this is the cap as of the current date) of the payor’s income is to be used in determining the calculations. The first calculation involves taking the difference between thirty percent of the income of the monied spouse and 20% of the non-monied spouse. The next calculation involves taking forty percent of the combined parental income minus the payee’s income (non-monied spouse’s). The lower number from these two calculations is the guideline temporary maintenance amount.
If the monied spouse has income above $543,000.00, the court should determine if there should be additional guideline temporary maintenance based on nineteen items outlined in the statute. The court needs to state the factors it considers and the reasoning behind the calculation of this additional amount if any. Finally, the court needs to consider seventeen enumerated reasons to determine if the presumptive temporary maintenance number is not just or not appropriate. These factors are: how long was the marriage; substantiality of differences in the husband and wife’s income; the standard of living of the family in the marriage; health and ages of each; earning capacities; the need for education or training; waste of property; disposing of assets before a divorce without fair compensation; whether the parties lived together or apart before the case; activities that might have thwarted the other’s ability to earn; health insurance; the need to care for children or elders that inhibits the ability to earn; difficulties either encounters in finding employment; exceptional added expenses for children; tax issues; marital property that may be distributed; delay or lost education or career opportunities of the payee spouse; contributions to the career of the other or services of parent, homemaker, spouse, or money earner; and any other factor specifically found to be equitable to consider. If the court does change the award from the presumptive amount, the reasons considered and justification must also be stated.
This temporary maintenance amount is supposed to be an amount to cover all the non-monied spouse’s presumable reasonable expenses. Khaira v Khaira, 93 A.D.3d 194, 196, 938 N.Y.S.2d 513, 514, 2012 N.Y. App. Div. LEXIS 849, 1, 2012 NY Slip Op 850, 1 (N.Y. App. Div. 1st Dep’t 2012). This amount, as outlined in the statute is supposed to cover all the payee’s basic living expenses including the carrying costs of the house, food, clothes and customary items. Id.
According to the law, if the court does not have enough information to determine income, the award should be based on the greater of the needs of the non-monied spouse or the standard of living of the couple before the divorce. Temporary maintenance, in litigated cases, is usually just one aspect requested as part of a pendente lite motion. Other things that are often requested are custody awards, child support, orders of exclusive use and occupancy of residences, orders of protection, among other things.
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