Last week, Governor Cuomo signed a bill that will soon overhaul the way spousal support is established for divorcing couples in New York State. The portions of the bill that deal with temporary spousal support will take effect on October 25, 2015, and the rest will take effect on January 23, 2016.
This law establishes a standard for how permanent spousal maintenance is determined – before, maintenance was purely up to a judge’s discretion, and awards were inconsistent. A 2010 law created a formula for determining temporary spousal support, but that was only applicable between the time a divorce action was filed and when a final judgment was entered. There were problems with that law, which this one is trying to address.
What are the pertinent parts of the new law?
- It uses 2 different calculations, one where child support is also being paid, and one where it is not.
- It lowers the cap on the payor’s income from $543,000 to $175,000. In other words, maintenance is only calculated on the first $175,000 of income. (The court may base an award on an income amount higher than the cap, but must explain why in writing.)
- It includes a time frame for the duration of spousal support, which increases with the length of the marriage. It also takes anticipated retirement assets into consideration.
- It specifies that maintenance ends upon the death of either spouse or the remarriage fo the payee.
- It eliminates enhanced earning capacity from equitable distribution.
- The court can also order specific spouses to pay for specific expenses – thus, for instance, giving the payor credit if he or she is also paying the mortgage for the family home.
- The court can still deviate, using the factors established in the 2010 law, to avoid an award that is either unjust or inappropriate.
- It is clear that the payor’s retirement is now a factor in modifying the support amount.
Of course, couples can still come to their own agreement about spousal support, using mediation, collaborative law, or another process. This, however, gives us a new jumping off point to determine a standard for how it should be calculated.
I have already started to use the formulas to show my clients, as they try to understand what is “fair.” Some are disappointed, some are elated. But this is our new reality.