Effective October 12, 2010, new laws were enacted which radically changes the landscape with respect to applications for temporary maintenance awarded during the pendency of a divorce action and for determining maintenance (also known as “alimony”) after a divorce.

While in the past, awards of temporary maintenance were anchored to the actual reasonable needs of the spouse requesting maintenance, or to the parties pre-separation standard of living, the new legislation introduces a “formula” for determining the “presumptively correct” amount of temporary maintenance to be awarded by the Court. A court may deviate from the “presumptively correct” amount of temporary maintenance if the award that is either “unjust” or “inappropriate” and such a finding must be based on one or more of 17 adjustment factors noted in the statute.

The language of the new statute is confusing, but essentially the new maintenance formula (which applies to divorce actions commenced on or after October 12, 2010) will result in an award of temporary maintenance if one spouse earns less than two thirds of the income of the other spouse. For example, if one spouse earns $100,000.00 per year, while the other spouse earns $150,000.00 per year, temporary maintenance will not be awarded. If, however, one spouse earns $50,000.00 per year, while the other spouse earns $100,000.00 per year, the new formula would have the higher earning spouse pay the other $10,000.00 per year in temporary maintenance.

Where one spouse earns over $500,000.00 per year, the new statute provides that any additional temporary maintenance must be based upon a list of 19 factors. Like the “formula” for awarding child support, parties may voluntarily choose not to use the statutory formula for awarding temporary maintenance for all income groups.

This represents a sum of money awarded to a spouse upon a divorce and it may be awarded for a specific amount of years, or in some cases for the rest of a party’s life. In addition to the “formula” used to calculate awards of temporary maintenance, the new legislation provides a list of 20 factors to be utilized by the Court in awarding “Post Divorce Maintenance” – adding nine factors to the 11 previously used by the Court. Though awards of “Post Divorce Maintenance” are not based upon the formula used in awarding temporary maintenance, the fear among experienced matrimonial practitioners is that inflated awards of temporary maintenance using the new formula will become permanent, post divorce awards.

Michael A. Cohen has been helping family members affected by divorce in Nassau County, Suffolk County, Westchester County and the five boroughs of New York City for over 20  years and can provide sound, expert advice to those who have difficult choices to make. Call now at 516-280-6806