Articles Posted in maintenance

As we have previously discussed in past blog posts, a New York family court can order payment from one spouse to another of maintenance during the pendency of Nursewithman-300x200the divorce as well as after the divorce is final. Payments made during the pendency of the divorce are called temporary maintenance, pendente lite maintenance or sometimes spousal support, and payments made following the divorce are termed spousal maintenance or post-judgment maintenance.

Under the New York Domestic Relations Law, section 236(B), a court is required to consider a formula based on income and certain factors when determining a deviation from the formula guidelines for the appropriate amount of temporary maintenance, spousal support or maintenance. By and large, the factors are similar for the two types of awards, with the difference being that spousal support or temporary maintenance is designed only to last during the divorce proceeding. When it comes to determining whether a court can order one spouse to pay for another spouse’s medical expenses, the first place to look is at the factors outlined in section 236(B).

The statute lists a number of factors that a judge should consider, none of which explicitly mention the payment of medical expenses. However, several of the factors tangentially relate to medical expenses. So, in effect, a court could indirectly take a party’s medical expenses into account.

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One of the most critical and often overlooked issues in a New York divorce is how the parties will obtain health insurance. Many families, especially those with only one working partner, rely on health insurance benefits that are obtained through the working party’s employer. However, in the event a couple divorces, those insurance benefits will no longer be available to the non-working spouse and arrangements will have to be made to provide for their health insurance.

One option a non-working spouse has to obtain health insurance after a divorce is to obtain COBRA benefits. COBRA is a federal law that requires insurance companies to extend coverage to qualifying beneficiaries in the event of a qualifying event. Commonly, COBRA benefits are offered to an employee when their position is terminated; however, COBRA benefits are also available for spouses after a divorce.

One downside of COBRA benefits is that they can be quite costly because the employer will no longer be covering any of the cost. Thus, determining how each spouse will obtain health insurance benefits and how those benefits will be paid for is often a contested issue.

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Divorce is a complicated process at the best of times, but when you’ve got a narcissistic personality to deal with throughout the entire experience, it can feel like you’re two steps away from tearing your hair out. These people make it feel as though you’ll never be able to move on with your life because they go out of their way to make the settlement as complicated as possible. Narcissists refuse to relinquish their control over a former partner, and that makes coming to terms on things like equitable distribution, maintenance, and more incredibly tricky.

according to “LiveAbout.com“, the characteristics of a narcissist might include:

  • An overwhelming need to be right
  • An obsession with control
  • A lack of interest in negotiation
  • No ability to feel remorse
  • Wants to be admired and respected
  • May go out of their way to slow down the divorce procedure
  • Hangs onto resentment and negative feelings

So, how do you deal with a narcissist in a divorce? The simplest solution is to prepare yourself for a bumpy road.

Dealing with a Narcissist in Divorce

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When it comes to dividing up assets after a New York divorce, New York is an equitable distribution state. This means that, rather than dividing up a couple’s assets straight down the middle, if a court needs to resolve the issue, a court will consider a number of factors to ensure that the marital assets are divided fairly. However, only marital assets are subject t0 an equitable distribution analysis.A spouse’s separate property — such as that which was owned prior to the marriage — will not generally be considered marital property. However, property acquired throughout the marriage, including a businesses started during the marriage, is usually considered to be a marital asset that will be subject to equitable distribution.

In addition to the distribution of marital assets, a court may also order that one spouse pay post-divorce maintenance to the other spouse. The determination of how much spousal maintenance is appropriate is governed to some extent by formula, but it is left largely up to the discretion of the judge overseeing the divorce.

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As we have discussed in previous posts, when a New York court is tasked with determining the amount and duration of spousal maintenance payments following a New York divorce, the court will start with the formula contained in Domestic Relations Law section 236(b). For determining the duration of spousal maintenance payments, the statute breaks marriages down into three categories and assigns each a percentage range:

  • Marriages less than 15 years in length: 15-30% of the length of the marriage
  • Marriages between 15 and 20 years in length: 30-40% of the length of the marriage
  • Marriages over 20 years in length: 35-50% of the length of the marriage

Domestic Relations Law Section 236(b) makes room, however, for the situation where the presiding judge believes that the guidelines do not adequately account for the party’s situation. In this case, the judge can order post-divorce maintenance for a duration that is shorter (or longer) than recommended by the formula. However, if a judge decides to depart from the guidelines, she must detail her reasoning in writing.

The spousal maintenance duration formula was made law back in 2015, and there have been relatively few cases testing a judge’s limits to depart significantly above the guidelines. However, the cases that have been issued are instructive. For example, a late-2016 case presented a situation where the party seeking maintenance payments was able to obtain them for the upper range of the guidelines.

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When a judge presides over a New York divorce, one of the parties will often request to receive post-divorce maintenance payments, formerly called alimony, from the other party. Up until 2015, the determination of the amount and duration of post-divorce maintenance was largely left up to the discretion of the judge overseeing the case. However, in 2015, the New York Legislature enacted sweeping reforms of the New York Domestic Relations Act, particularly in regard to how post-divorce maintenance is awarded.

Hoping to standardize the manner in which judges were calculating and awarding post-divorce maintenance, the legislature stepped away from a standard that was almost completely relied on judicial discretion, and implemented a more formula-based system. Previous posts have discussed how judges arrive at the amount of spousal maintenance, but we have not recently looked at the durational aspect of post-divorce maintenance.

Under Domestic Relations Law section 236(b), the court still retains some discretion in determining how long a party is entitled to post-divorce maintenance payments. However, the formula for calculating the timeline provides a range of time, as a percentage, based on the length of the marriage as the presumptive time period for maintenance to last. For example, post-divorce maintenance payments in marriages lasting less than 15 years should last between 15% to 30% of the marriage’s length. For marriages lasting between 15 and 20 years, the post-divorce maintenance payments should last between 30% to 40% of the overall length of the marriage. Finally, for marriages that were over 20 years in length, the post-divorce maintenance payments should last for 35% to 50% of the length of the marriage.

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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.

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Following a New York divorce, the judge presiding over the case may require one of the parties to provide regular spousal maintenance payments to the other party. These payments – known as maintenance in New York but commonly called alimony – are calculated according to a specific formula laid out in New York Domestic Relations Law section 236(B)(6). Spousal maintenance may be ordered for a specific period of time, or, in rare circumstances, it may be ordered for the lifetime of the receiving spouse.  There are presumptive guidelines for the amount and duration of maintenance based on incomes and length of the marriage.While spousal maintenance payments are primarily determined by the formula contained in section 236(B), there is a fair amount of judicial discretion in divorces with high-income earning spouses. As a general matter, New York law imposes an income cap when determining the appropriate amount of spousal maintenance. Back when the New York Domestic Relations Law was rewritten, the income cap was set at $175,000. However, the income cap increases incrementally year-over-year according to the consumer price index. The current New York spousal maintenance income cap is $184,000.

If a party to a New York divorce earns above the current income cap, the judge will apply the formula in section 236(B)(6) to determine the amount of spousal maintenance up to the income cap. However, a judge may exercise her discretion in ordering additional spousal maintenance by taking into account the party’s income in excess of the cap.

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Divorce or family law issues for unmarried people is a complicated time for any couple, but situations can become far more complex when children are added into the mix. Not only do New York divorce attorneys and the New York Supreme or Family Courts need to determine who should provide care for those children in terms of custody, but they must also decide whether and what child support should be given from a non-custodial parent. If child support is awarded, then the New York Courts may use a range of factors to determine exactly how much should be given. The decision comes from a careful consideration of both the payor’s income, the custodial parent’s income, the child support guideline’s and reasons to deviate from the guidelines.

Before a payor’s income can be used to calculate child support payments, certain deductions may be applied to the total earning potential of the individual. The New York Child Support Standards Act provides a formula based on percentage of income, to determine exactly how much support should be paid. Deviations from the guideline amount of support can be argued or negotiated by family law attorneys or divorce lawyers. The Child Support Standards Act indicates that there are numerous things that can be deducted from a person’s income before the formula is applied, including:

  • Maintenance/ alimony to be paid to the current spouse
  • Maintenance/ alimony paid to a previous spouse
  • Child support paid pursuant to a written agreement or court order for a child for whom the parent already has a duty of care.
  • Supplemental security income
  • Public assistance payments
  • New York City earnings or income taxes paid
  • Federal insurance contributions act taxes paid
  • Unreimbursed employee business expenses

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At some point in a New York divorce case, the court will generally make a child support determination, a spousal support determination, or both. Support determinations can have an enormous effect on both of the parties to the divorce, and the court is supposed to rely on specific information when making them. However, in some cases, a court may rely on information that was not correct, or it may have made a determination without considering all of the relevant information.In such cases, New York family law allows for the adversely affected party (the debtor) to bring this to the court’s attention. Under New York Consolidated Laws, Article 52, section 5241(e), the party can claim that the court’s determination was based on a “mistake of fact.”

A mistake of fact is defined as “an error in the amount of current support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated.” Most commonly, the mistake is related to the amount of support ordered by the court.

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