Thursday, November 4, 2010


DivorceNewYorkStyle: DIAL "M" FOR MORASS

Last month, four new statutes went into effect: No Fault Divorce, Interim Maintenance, Counsel Fees, and Child Support Modification. With the same belated stroke of the Legislature's pen which finally permitted no fault divorce to be enacted, the Legislature (a) enacted a counsel fee statute which many (at least in the Second Department) considered unnecessary and perhaps less effective given existing case precedent; (b) enacted a child support modification statute which will be fodder more more litigation; (c) and enacted an interim spousal support statute that is so filled with absurdity, inconsistency, and conflict that lawyers, clients and courts (both on the trial and appellate level) will be sorting and slugging it out for years.

Instead of simply passing the simple no-fault legislation we desperately needed, the People of the State of New York and its over-burdened court system have been handed a hodgepodge of fecal matter which will make matrimonial litigation more costly and take longer to resolve. Let us all thank the New York State Legislature, Lobbyists with specialized agendas, and the Governor for their "gift" to the People.

Now, you say, aren't all these laws much better for the non-monied spouse-- generally thought to to be the Wife? Not necessarily. Although this is the expressed intent of the statutes, the practical result is that in many cases, the convoluted provisions, particularly of the maintenance law, will cause more litigation, more court time, more resentment, and more motion practice-- because the monied spouse will not be able to live with the result; because the statute itself is in conflict with other provisions of law; because application of the "factors" beyond straight percentages will be contested; because every motion for temporary spousal support will (and should) be met with a cross motion. By the way, there are no corresponding provisions in the Family Court, so none of this applies there. So what does all this mean? Let's get technical (sorry about that part).

For purposes of this posting I will only deal with the interim spousal support statute. Get ready for a headache.

Now-- the court must apply the statutory guidelines unless the parties' opt out in a properly compliant written agreement or if the court deems the guidelines to result in an "unjust or inappropriate finding". The guideline amount is determined in two parts:

(1) A mathematical calculation based upon income up to $500,000 of the payor's income; and

(2) A calculation on income over $500,000 after the mathematical calculation has first been made on income up to $500,000 based upon consideration of 19 factors set forth. The court must set forth the factors considered in its order. These are the same factors to be considered on deviation where the presumptive calculation is deemed “unjust or inappropriate".

The statute does not say that the percentages may be used on income over $500,000. It only says the factors are to be considered on income which exceeds the $500,000 cap. If the lowest calculation on income up to $500,000 results in a finding of $0.00, there shall be no award.

The Statutory Calculation Up to $500,000

"The court shall determine the guideline amount of temporary maintenance in accordance with the provisions of this paragraph after determining the income of the parties:

(1) Where the payor's income is up to and including the income cap ($500,000):

(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."

FYI: A maintenance calculator and worksheet is currently available on the Office of Court Administration website in the “Divorce Resources” section under “Temporary Maintenance Tools”: www.

Confused yet? Here are some examples:

1.                       Payor                                       Payee

                          $150,000                                $20,000
                               x 30%                                    x 20%
                           $45,000                                    $4,000

                          a. $45,000-$4,000=$41,000

                          b. $150,000+$20,000=$170,000 x 40%=$68,000

                          c. $68,000-$20,000=$48,000

                          Support is presumptively $41,000

2.                       Payor                                           Payee

                         $150,000                                     $100,000
                              x 30%                                           x 20%
                           $45,000                                        $20,000

                          a. $45,000-$20,000=$25,000

                          b. $150,000+$100,000=250,000 x 40%=$100,000

                          c. $100,000-$100,000=$0

                         Support is presumptively $0.00

3.                      Payor                                               Payee

                         $25,000                                                $0
                            x 30%                                           x 20%
                           $7,500                                                 $0

                        a. $7,500-$0=$7,500

                        b. $25,000+$0.00=$25,000 x 40%=$10,000

                        c. $10,000-$0=$10,000

                        Support is presumptively $7,500

4.                     Payor                                                Payee

                        $500,000                                     $250,000
                             x 30%                                           x 20%
                        $150,000                                        $50,000

                     a. $150,000-$50,000=$100,000

                     b. $500,000+$250,000=$750,000 x 40%=$300,000

                     c. $300,000-$250,000=$50,000

                     Support is presumptively $50,000

5.                  Payor                                                      Payee

                     $750,000                                                 $20,000
                    ($500,000 USED)
                          x 30%                                                    x20%
                     $150,000                                                   $4,000

                     a. $150,000-$4,000=$146,000

                     b. $500,000+$20,000=$520,000 x 40%=$208,000

                     c. $208,000-$20,000=$188,000

                     Support is presumptively $146,000 on the payor’s income up to $500,000 plus a determination as to additional support on the $250,000 in income over the $500,000 guideline cap based upon 19 factors.

If the presumptive amount is deemed unjust or inappropriate by the court or there is income over $500,000, the following "factors" come into effect:

                                      (i) the length of the marriage;
                                      (ii) the substantial differences in the incomes of the parties;
                                      (iii) the standard of living of the parties established during the marriage;
                                      (iv) the age and health of the parties;
                                      (v) the present and future earning capacity of the parties;
                                     (vi) the need of one party to incur education or training expenses;
                                    (vii) the wasteful dissipation of marital property;
                                    (viii) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
                                     (ix) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
                                     (x) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
                                    (xi) the availability and cost of medical insurance for the parties;
                                    (xii) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
                                   (xiii) the inability of one party to obtain meaningful employment due to age or absence from the workforce;
                                   (xiv) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
                                   (xv) the tax consequences to each party;
                                   (xvi) marital property subject to distribution pursuant to subdivision five of this part;
                                  (xvii) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
                                (xviii) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
                                 (xix) any other factor which the court shall expressly find to be just and proper.

There is so much more to this, that, to the lay person (and to many lawyers and judges), their head may explode. I will not further bore you with more detail (too late, I know) except to say that this is not good. While the recipient of an interim award (particularly where the payor is a W-2 wage earner) will no doubt benefit from this new law, it does not factor in child support issues or payment of household expenses. Is the recipient supposed to pay for everything in the house from this money? Is the payor supposed to stop paying those bills? What about all the double counting of housing, child care, and medical insurance between this law and the child support law. How did the Legislature manage to give some bizarre consideration to premarital arrangements and adults, including in-laws? How did they factor in marital property when this is an interim provision and marital property has not yet been determined? Etcetera, etcetera, etcetera. I could go on...

We will not be able to figure this all out for at least a year or two when the appellate courts start hearing all of the appeals that will come from this. Of course, the Legislature could go back to the drawing board before that...or not. The bottom line is, this must be corrected quickly and before the deluge of motions, bad decisions and appeals. Unfortunately, I don't think this will be the case and it will be left to courts and lawyers to fix the unfixable. Is there a Tea Party in sight, or just more Mad Hatters?