New York's Temporary Maintenance Guidelines Two Years Later: Have They Improved the Divorce Process?

ALBANY, NY, September 17, 2012

In the fall of 2010, when New York enacted no-fault divorce, state lawmakers also enacted legislation that provided guidelines for temporary spousal maintenance.

During the pendency of a divorce action, the child support guidelines provide for the issuance of temporary awards. The custodial parent of unemancipated children may receive support from the non-custodial parent in order to provide for the basic needs of the children, namely food, shelter, clothing and the like. But until two years ago, no law provided similar guidelines for establishing temporary spousal maintenance while a divorce is pending.

New York was one of the first states (joining Pennsylvania and Colorado) to adopt temporary spousal support guidelines.

Temporary Spousal Support in New York: The Guidelines

Under the 2010 law, spousal maintenance is awarded during divorce when one spouse's income is less than two-thirds of the other spouse's income. That is, if the husband makes $120,000 and the wife makes less than $80,000, she could be awarded temporary maintenance.

The exact maintenance awarded is based on a calculation -- either 30 percent of the higher income less 20 percent of the lesser income, or 40 percent of the combined incomes less the lesser income, whichever is less. Using the example above, let's say the exact amount the wife makes is $60,000, so she would receive $12,000 in temporary maintenance (40 percent of $120,000 plus $60,000 less the $60,000).

The income for these calculation purposes was initially capped at $500,000 (now $524,000), so if one spouse earned $500,000 a year and the other had no income, the maximum temporary maintenance award would be $150,000 a year. Additionally, temporary maintenance is not allowed when spouses' incomes are less than the self-support reserve (which is 135 percent of the federal poverty guidelines, or $15,080 for 2012).

Impact of Temporary Maintenance on New York Divorce

By creating a formula and providing clear guidelines for awarding temporary spousal maintenance, the 2010 law intended to make support awards -- which typically vary wildly based on judicial discretion -- fairer and more predictable. But in the past two years, how effective have these guidelines been in practice?

Concerned about whether temporary support guidelines are having the desired effect, New York state legislators wanted to look at the law's impact. They commissioned a report by the Law Review Commission, asking it to analyze the effectiveness of the temporary spousal support formula and make recommendations.

Based on information gathered from New York family law attorneys by the Wall Street Journal, the law has primarily helped low-income spouses. While that was definitely one of the law's intentions, it, unfortunately, does not address many situations more common to high-income couples, such as handling mortgage payments during divorce proceedings. And in a few cases, application of the guidelines has actually resulted in the higher-income spouse being required to pay more than his or her monthly income.

The Law Review Commission's report was originally due in December 2011, but has been delayed several times. State legislators were hoping to review it before the 2012 legislative session ended, but the most recent deadline (May 31) was missed once again. A commission spokesperson said that the group is still reviewing samples from the 7,000 divorces in a nine-county area in 2011. It hopes to conclude the study soon, but is working on a small budget with few staff.

While the report's recommendations will not be binding, legislators are hesitant to move forward without hearing them. Divorce attorneys throughout New York hope that the extra time spent reviewing the data will allow the commission to create a more meaningful report. But the reality is that the law will remain, with its sometimes flawed application, at least until the next legislative session.

The American Academy of Matrimonial Lawyers is concerned about continuing as is, because application of the guidelines often results in delays that make it difficult for those divorcing.

Colwell, Colwell & Petroccione, LLP
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