Temporary Maintenance My Only Be Here Temporarily


temporary maintenance divorce attorney long islandPursuant to Domestic Relations Law §236B (5 a-c), for all divorce actions commenced after October 12, 2011, courts are required to apply a statutory mathematical formula in determining temporary maintenance.  Previous this change, courts created a pendite lite award by considering the reasonable needs of the moving spouse and the financial ability of the other spouse to tide over the more needy party pending the outcome of the litigation.  The award would typically cover maintenance, child support, and counsel fees.  With the change in the law, courts will apply a statutory formula to the parties’ income and calculate a presumptive award.  This award would be ordered unless that award would be considered unjust or inappropriate.

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Temporary maintenance, child support and legal fees can be a complex area to navigate

How exactly would a court determine if this presumptive award is inappropriate?  The statute lays out a list of seventeen factors a court can consider to deviate from the presumptive award.  The court will deviate from the award after considering: (1) the standard of living established during the marriage; (2) the age and health of the parties; (3) the earning capacity of the parties; (4) the need of one party to incur education or training expenses; (5) the need of one party to incur education or training expenses; (6) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (7) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (8) acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment; (9) the availability and cost of medical insurance for the parties; (10) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that inhibit a party’s earning capacity or ability to obtain meaningful employment; (11) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (12) the need to pay for exceptional additional expenses for the children, including school, day care and medical treatment; (13) the tax consequences to each party; (14) marital property subject to distribution; (15) 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; (16) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner, and homemaker, and to the career potential of the other party; and (17) any other factor that the court expressly finds to be just and proper.

If the court concludes that the presumptive award is unjust or inappropriate, the statute requires that the court must put in an order exactly how it came to that conclusion, which factors it considered and the reasons the court adjusted the presumptive awards.

Though just over a year old, matrimonial attorneys and courts have significant challenges to this statute.  By using an equation to determine awards, all discretion has been removed from the court, unless it can justify a deviation within the seventeen factors provided in the statute.  The problem with these factors is that many of them, if not all, will not be fully known until after trial!  Additionally, the legislation does not consider payment of household carrying charges and expenses by the payor spouse nor does it provide for consideration of domestic violence as a deviation factor if the harmed spouse’s ability to work is not impaired.  As reported in the Nassau Lawyer, The Nassau County Bar Association recently forwarded a resolution to the state legislative leaders and to the New York State Law Revision Commission which is reviewing the interim and permanent spousal support legislation and is expected to release its final report this year.

LEARNING POINT: Temporary maintenance, child support and legal fees can be a complex area to navigate.  When seeking a divorce contact an attorney to protect your rights and assets while the legislature decides whether or not to repeal the temporary award statutes.

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