## New Temporary Maintenance – How Does It Work?

Among recent changes to New York’s divorce laws, the legislature amended provisions of the Domestic Relations Law that deal with temporary spousal maintenance.  DRL §236(B)(5-a)(c) presently includes a formula which, if applied according to the statute, results in the presumptively correct amount of temporary maintenance. DRL §236(B)(5-a)(c)(1) describes how those provisions are applied:

(a) the court shall subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.
(b) the court shall then multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent.
(c) the court shall subtract the income of the payee from the amount derived from clause (b) of this subparagraph.
(d) the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars.

According to the legislative documents, the legislature intended that the temporary maintenance guidelines would only result in an award when there is an income gap between the two parties such that the less-monied spouse’s income is less than two thirds of the more-monied spouse’s income. For instance, if the payor’s annual income is \$60,000 per year, the guidelines will only result in an award if the payee’s annual income is less than \$40,000. The numerical guideline is only applied to the payor’s income up to \$500,000 of her/his income, with a set of factors to be applied by the court to determine any additional amount of temporary maintenance on the payor’s income above this \$500,000 cap.

Here are some examples of how the statute works:

Example 1

Step # 1: Determine Respective and Combined Income:
Payor‘s Income \$60,000
Payee‘s Income \$30,000
Combined Income \$90,000
Step # 2: Perform Calculation # 1: (Subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.):
30% of Payor‘s Income (30% x \$60,000) = \$18,000
Minus
20% of Payee‘s Income (20% x \$30,000) = \$6,000
Result of Calculation # 1: \$12,000
Step # 3: Perform Calculation # 2: (Multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent):
Payor‘s Income = \$60,000
Plus
Payee‘s Income = \$30,000
Combined Income Equals \$ 90,000
Multiplied by 40% (\$ 90,000 x 40%) = \$36,000
Subtract Payee‘s Income from Product:
(\$36,000 minus \$30,000 = \$6,000)
Result of Calculation # 2: \$6,000

Because paragraph (d) provides that the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars, and because Calculation # 2 is the lesser amount, specifically, \$6,000, Calculation # 2 controls, and the temporary maintenance award would be \$6,000.

Example 2

Step # 1: Determine Respective and Combined Income:
Payor‘s Income \$120,000
Payee‘s Income \$80,000
Combined Income \$200,000
Step # 2:
Perform Calculation # 1: (Subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.):
30% of Payor‘s Income (30% x \$120,000) = \$36,000
Minus
20% of Payee‘s Income (20% x \$80,000) = \$16,000
Result of Calculation # 1: \$20,000
Step # 3: Perform Calculation # 2: (Multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent):
Payor‘s Income = \$120,000
Plus
Payee‘s Income = \$80,000
Combined Income Equals \$200,000
Multiplied by 40% (\$ 200,000 x 40%) = \$ 80,000
Subtract Payee‘s Income from Product:
(\$80,000 minus \$80,000 = \$0)
Result of Calculation # 2: \$0

Because paragraph (d) provides that the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars, and because Calculation # 2 is the lesser amount, specifically, zero, Calculation # 2 controls and the temporary maintenance award would be zero.

Example 3

Step # 1: Determine Respective and Combined Income:
Payor‘s Income \$100,000
Payee‘s Income \$20,000
Combined Income \$120,000
Step # 2: Perform Calculation # 1: (Subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.):
30% of Payor‘s Income (30% x \$100,000) = \$30,000
Minus
20% of Payee‘s Income (20% x \$200,000) = \$4,000
Result of Calculation # 1: \$26,000
Step # 3: Perform Calculation # 2: (Multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent):
Payor‘s Income = \$100,000
Plus
Payee‘s Income = \$20,000
Combined Income Equals \$120,000
Multiplied by 40% (\$120,000 x 40%) = \$48,000
Subtract Payee‘s Income from Product \$100,000
(\$48,000 minus \$20,000 = \$28,000)
Result of Calculation # 2: \$28,000

Because paragraph (d) provides that ―the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars,and because Calculation # 1 is the lesser amount, specifically, \$26,000, Calculation # 1 controls and the temporary maintenance award would be \$26,000.

There are several issues that are not addressed by the new statute. Initially, prior to its enactment, judges had discretion to set temporary awards based upon the actual needs of the parties. Under the prior statute, temporary maintenance was awarded to allow the non-monied spouse to preserve his or her financial circumstances and maintain the prior lifestyle during the divorce. While the goal of the prior statute was laudatory, unfortunately, the temporary maintenance awards varied greatly from case to case.

Since the new statute creates uniformity by using a formula, temporary maintenance awards are going to be consistent as far as their amount is concerned. At the same time, the new statute doe snot address duration of the maintenance and length of the marriage of the parties. For temporary maintenance purposes, a spouse in a long term marriage would receive the same temporary maintenance award as a spouse in a short term marriage. This is likely to create an incentive for parties in a short term marriage and their lawyers to extend the divorce action as long as possible.

Another problem with the new statute is that it applies to the first \$500,000 of income, someone married to person who earns well in excess of that figure would receive less under the new statute than he or she would be entitled to receive under the old law, when the full income was used for determining temporary maintenance.

Finally, the temporary maintenance statute creates certain expectations on part of both litigants and judges. For litigants, there is now an expectation that any maintenance will be at the level set by the temporary maintenance formula. For judges, it is an easy way to set the final maintenance award.