The long awaited divorce law overhaul, that has major changes to the maintenance (fka alimony laws) was signed into law by the Governor on September 25, 2015 and is effective as of October 25, 2015 for temporary maintenance and in January 2016 for the remaining changes. The new law continues the temporary maintenance guidelines (maintenance that is to be paid while a divorce case is pending), but also extends these guidelines to post-divorce maintenance awards (maintenance for some duration after the divorce judgment is entered. The old law put a cap of $543,000.00 for the income to be considered in the maintenance guideline calculation while the new law lowers this cap to $175,000.00. The cap will change over time according to Consumer Price Index changes. In a court’s discretion a judge may consider income over the cap or deviate from the guidelines by using the criteria established in the statute. Family expenses, while the divorce case is ongoing, under the new law need to be considered and allocated between the parties by the court where it is appropriate.
Many practitioners felt that the guideline temporary maintenance calculation under the old law produced unduly burdensome awards, and perhaps this lower income cap might address that feeling. Further, under the old law there was a guideline formula for temporary maintenance but none for post divorce maintenance. Post divorce or durational maintenance was rather to be based on a subjective list of criteria contained in the statute. Since the considerations were subjective, including no guide on how long maintenance should last (if there was to be any at all) resulted in a wide range of results that varied from case to case, courtroom to courtroom, and between venues. Hopefully the new law can provide more predictability in matrimonial cases. This can be helpful regardless of the process used to get to a divorce be it mediation, litigation, settlement negotiation, or collaborative law. If people have a better idea what to expect after trial, it can obviate the need for certain issues to be litigated.
These new divorce maintenance provisions are contained in Domestic Relations Law Section 236. A lower amount of maintenance is suggested in the law when the spouse paying maintenance is also paying child support. When there are not child support payments or the person paying maintenance is receiving child support, the law has two presumptive maintenance calculations which are the same as the temporary maintenance formula that was in effect starting at the end of 2010. There is a temporary maintenance calculator on the New York State court system website that is helpful in determining the guideline amount. If parties are not getting divorced, the law allows for the family court to determine a spousal support award, under the right set of circumstances, and now contains the same presumptive formulas as the maintenance provisions in a divorce.
Another new feature of the law is that it suggests a range of how long the post-divorce maintenance should be in effect. Essentially the guides suggest longer durations for maintenance for longer marriages. Further the law contains changes in the presumptive amount of maintenance when child support is involved which was lacking under the 2010 divorce law overhaul. A final major feature of the law is that enhanced earning capacity is no longer to be considered a marital asset subject to equitable distribution. Enhanced earning capacity, under the old law, provided that awards should be made to the spouse for a share of the value of a professional degree or license that was acquired while the parties were married. Contributions by a spouse toward the enhanced earning capacity of the other can still be considered in the ultimate equitable distribution determination; however enhanced earning capacity is no longer to be considered an asset that specifically should be distributed.
As the law begins to apply and the courts and professionals start adjusting to it, the case law and how the statute gets applied will develop. Over time the meaning and effect of the new law will gain clarity. Please see our other blog entries and webpages for more information about this and other matrimonial and family topics. As always, feel free to call about your free initial consultation. It would be our pleasure to speak with you about it.