What is the New Temporary Maintenance (Alimony) Law?
Confusion exists about the subject of alimony, which is referred to as “maintenance” in the state of New York. A common misconception entails the belief that alimony only comes into play during the divorces of high net worth individuals. In truth, any spouse reliant on a significant other to survive financially can request alimony in divorce proceedings. Alimony and be sought even when the earnings of the spouse can be deemed somewhat modest. Of course, the monetary amount of the alimony would be fair based on the earnings of the spouse. A person earning $30,000 per year cannot be expected to pay $25,000 per year in alimony.
A judgment of alimony isn’t about frivolously awarding an ex-spouse income. A divorce could leave someone in very difficult financial straits. Without an order of alimony, a spouse might not be able to maintain a house or pay for other vital expenses. In fact, the situation may be so severe that waiting for a final divorce decree and corresponding alimony judgment might be interminable. A spouse suffers severe financial strain during the actual divorce process itself.
In order to alleviate financial difficulties, it was common practice to render a judgment of temporary maintenance also known as temporary alimony. Temporary alimony helped cover financial obligations to a “lesser-monied spouse” before the divorce finalized.
The rules regarding temporary maintenance/alimony have changed over the years. Some suggest the new changes in the temporary alimony rules are for the better.
Eliminating Confusing Criteria for Temporary Maintenance
Prior to 2010, the legal path for deciding temporary alimony was no real path at all. Judgments could be made without any clear reason or definitive rationale. While statutes did cover temporary alimony, the statutes embodied a subjective vagueness. Still, it was conceivable that the spouse seeking alimony found him or herself with an agreeable judgment. And then there was the other possibility. The temporary alimony award — if any — could be decidedly lacking. Also lacking would be a sense of fairness and equity under the law. How can someone go to court with any expectations of reasonable treatment if there are no rules clearly established in regards to temporary alimony?
Thanks to certain changes, the rules regarding temporary maintenance became less subjective.
The Establishment of a Formula
Child support is calculated based on a specific formula. New York state duplicated the concept of a formula although it is not the same as the child support version. The purpose of the formula allows the courts to figure out a reasonable amount of temporary maintenance. The presence of a formula further establishes consistency and equity among different petitioners. Again, fairness suffers when one court may rule far differently than another even when addressing identical income levels of spouses.
In amicable cases, the attorneys can work together to negotiate an agreeable temporary maintenance amount. Keep this in mind when seeking an attorney to provide divorce representation in family court. The better and more experienced the attorney, the more likely the attorney can procure a reasonable temporary maintenance amount.
Reaching an agreement is not always possible though. If the parties cannot agree on an amount, the judge steps in to make a determination. The judge does need to abide by the rules in the statute. The rules do differ based on the income of the higher-earning spouse.
The Actual Formulation
The court must follow a formula based on an income cap of $524,000. That means if the combined income of both spouses is less than $524,000, the following formula must be applied: First, the court looks at the income level of the spouse petitioning for alimony and subtracts 20% of that income from 30% of the other spouse’s income. Second, the total income of both spouses is multiplied by 40%. The income of the petitioning spouse gets subtracted this amount. Two figures exist based on the first and second formula. The court issues an award reflecting the lower of the two calculated figures.
The judge could disagree with the appropriateness of the formula. He/she may take other factors into consideration when applying the calculation. The health of both spouses, for example, can be considered when making the determination. In total, there are 17 factors that can be considered. In regards to the health of a spouse, perhaps an alimony award may be increased due to costs related to healthcare.
When the formula is over $524,000, a different approach must be taken by the courts. The judge has more discretion to award an amount based on 19 additional criteria established by statute. The judge cannot just arbitrarily present a figure though. The rationale behind the ruling must be presented by the court. As would be the case in any judgment, the opinion would be rendered in writing.
Retaining Counsel to Argue for Temporary Maintenance
Since the court does maintain a level of discretion in regards to rewarding alimony, the established formulas can be challenged and altered by the judge. Attorneys making arguments for and against a temporary maintenance amount play a part in the court’s decisions. After all, the presentation of evidence in support of increasing an alimony award should factor into the judge’s decision. A skilled attorney understands what must be presented in order to ensure the judge gains a complete picture of both spouse’s financial situation.
The reasons why hiring the best possible divorce and family law attorney is so important greatly reveals themselves very clearly this point in the proceedings.