As discussed in previous posts, the judge presiding over a New York divorce has the ability to order one party to pay the other spousal maintenance. There are two types of spousal maintenance.
The first is called pendente lite. Pendente Lite is a Latin term meaning “during litigation.” This is a temporary maintenance award that is designed to last only through the divorce proceeding. The justification for this order of support is that the spouse who controls the finances could otherwise cut off the other spouse’s access to money during the divorce proceeding before any judicial finding has been made. The second type of spousal maintenance is post-divorce maintenance, which continues for either a set term of years or, in rate circumstances, until death.
Both types of spousal maintenance are calculated by the formula contained in DRL section 236 and take into account similar factors. However, under certain circumstances, a judge can deviate from the maintenance amount provided by the formula by awarding more or less support, depending on the circumstances.
One situation where a judge is able to depart downward from the amount of support recommended by the formula is when, after subtracting the maintenance payments, the paying spouse is left with an annual income of less than 135% of the poverty income guidelines.
Another situation where a judge may depart downward from the suggested amount of spousal support is where the award would be “unjust or inappropriate.” When making this determination, a judge will consider a lengthy list of factors including “factor which the court shall expressly find to be just and proper.”
There are notably few cases dealing with downward departures from the recommended amount of spousal support; however, they do exist. In one case, the court determined that requiring a spouse to pay $37,000 in pendente lite maintenance was unjust because it would have a grave impact on his own finances. After taking the suggested support payments out of the payor’s roughly $155,000 annual salary, the court determined that he would be left with just $55,000 annually after taxes. The court held that this amounted to a major shift in resources.
The court explained that the legislature clearly intended for section 236 to shift resources from one party to the other, but the court determined that in this case the shift was too substantial. Thus, the court reduced the pendent lite maintenance amount from $37,000 to $24,000 after taking into account child-care obligations and the pre-divorce household.
Are You in the Middle of a New York Divorce?
If you are currently going through a New York divorce, or are considering filing for divorce in New York, you should consult with the Law and Mediation Office of Darren M. Shapiro. Attorney Shapiro has extensive experience handling a wide array of New York divorce cases, including those involving complex maintenance and support calculations. He provides each client with dedicated and personalized service. To learn more, and to schedule a free consultation to discuss your situation, call 516-333-6555 today.
More Blog Posts:
Determining Spousal Maintenance in New York Divorces Cases Involving High-Income Earners, Long Island Family Law and Mediation Blog, June 29, 2018
Grandparent Visitation in New York: Do a Child’s Expressed Desires Weigh into the Court’s Decision?, Long Island Family Law and Mediation Blog, June 12, 2018