4 Class 4 - Maintenance (Alimony) - September 15 4 Class 4 - Maintenance (Alimony) - September 15

4.1 Historic view of Maintenance (aka Alimony) 4.1 Historic view of Maintenance (aka Alimony)

4.1.1 Selected Maintenance Statutes 4.1.1 Selected Maintenance Statutes

See full Maintenance Statutes for reference

DRL § 236-B

Maintenance and distributive award.

1. Definitions. Whenever used in this part, the following terms shall have the respective meanings hereinafter set forth or indicated:

a. The term “maintenance” shall mean payments provided for in a valid agreement between the parties or awarded by the court in accordance with the provisions of subdivisions five-a and six of this part, to be paid at fixed intervals for a definite or indefinite period of time, but an award of maintenance shall terminate upon the death of either party or upon the payee's valid or invalid marriage, or upon modification pursuant to paragraph b of subdivision nine of this part or section two hundred forty-eight of this chapter.

...

5-a. Temporary maintenance awards.

a. Except where the parties have entered into an agreement providing for maintenance ... the court, upon application by a party, shall make its award for temporary maintenance pursuant to the provisions of this subdivision.

b. For purposes of this subdivision, the following definitions shall be used:

(1) “Payor” shall mean the spouse with the higher income.

(2) “Payee” shall mean the spouse with the lower income.

(3) “Length of marriage” shall mean the period from the date of marriage until the date of commencement of action.

(4) “Income” shall mean income as defined in the child support standards act

6. Post-divorce maintenance awards.

a. Except where the parties have entered into an agreement ... in any matrimonial action, the court, upon application by a party, shall make its award for post-divorce maintenance pursuant to the provisions of this subdivision.

4.1.2 Maintenance / Spousal Support Handout (for clients) 4.1.2 Maintenance / Spousal Support Handout (for clients)

Spousal Support

It is not unusual for one spouse to continue supporting the other for some time following a divorce, particularly when one spouse has been unemployed or under employed. You may have heard this referred to as alimony, maintenance or spousal support – they all mean the same thing: the higher earner makes periodic payments to the lower earner for a certain, specified period of time.

The purpose of spousal support is to help the receiving spouse become financially independent, and to have a lifestyle somewhat approaching the standard of living that the parties shared during the marriage. The questions that arise, of course, are “how much?” and “for how long?” We will explore these below.

New York has a formula for determining the “guideline amount” and “guideline duration” of maintenance, called the Maintenance Guideline Law (“MGL”).^{^[1]} However, as the name would suggest, the MGL is only a guideline, and there are several factors listed in the statute which are given as reasons that spouses may deviate from the guideline amount.

It is important to understand what the MGL says so you can have a frame of reference. However, mediation and collaborative process allow you to exercise more control over your arrangement. For that reason, we also look at your budgets. Our goal is to craft a support agreement that both parties find fair and equitable, and that is manageable for both parties.

The payor is the person who is paying spousal support – this is always the person who makes the higher income, regardless of gender. The recipient is the person who is receiving spousal support.

The formula includes a cap on the payor’s income – as of this writing, it is $192,000 per year. In other words, if the payor earns $200,000 or $300,000 per year, only the first $192,000 will be used in determining guideline maintenance.

The court (and parties in a mediation or collaborative process) must also consider a number of factors when considering what is a fair outcome. These factors, which are enumerated in the statute, include the following:

• The age and health of parties;

• The present or future earning capacity of parties;

• The need of one party to incur education or training expenses;

• Wasteful dissipation of marital property;

• The existence and duration of a pre-marital joint household or a pre-divorce separate household;

• Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment;

• The availability and cost of medical insurance;

• The care of children (including stepchildren and disabled adult children), elderly parents or in-laws provided during the marriage that affects a party’s earning ability;

• The tax consequences to each party;

• The standard of living the parties established during marriage.

• The reduced or lost earning capacity of the payee as a result of having foregone education, training, employment or career opportunities during marriage;

• The equitable distribution of marital property and the income thereon;

• The contributions and services of the payee as spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

• Any other factor that a court would consider to be just and proper.

Perhaps the most significant of these is “The standard of living the parties established during marriage.” While it is most likely not realistic that either party will have the same standard of living, our hope is that we can come up with a plan so that both parties will have something similar. You might note that, unless there has been a significant “wasteful dissipation of marital assets,” fault is not generally a factor in determining the amount or duration of spousal support.

Note: Spousal support was traditionally taxable to the recipient and tax-deductible to the payor. This was true when the formulas were created. However, the federal tax law changed, and beginning in 2019, spousal support no longer has special tax treatment. NYS tax law still follows the old guidelines, which makes it even more confusing. In other words the payor can still deduct the amount of spousal support paid from NYS taxes, and the recipient must pay NYS taxes on that same amount. But neither person declares it on federal taxes. My takeaway is that you might want to use an accountant to prepare your taxes if spousal support is involved.

Our website has an excellent calculator which you can use to determine how the MGL would apply to your situation. However, it is also important to figure out what is realistic for you and your spouse. For this reason, we look at your budgets, both to determine need and the availability of resources.

When does Spousal Support End?

Spousal support generally ends when either party dies, when the recipient gets remarried, or at a date specified in the Agreement. It is not unusual for a separation agreement to specify that spousal support will end when the recipient is living with a new romantic partner, whether or not they are legally married.

When is Spousal Support Modified?

If spousal support is going to continue for several years, you might want to include provisions for how the amount would change – for instance, if the payor’s income goes down or the recipient’s income increases by more than a certain percentage. In order to do this, you would have to willingly exchange tax returns or other proofs of income periodically. Parties who are close to retirement or who expect to start receiving Social Security may want to take this into consideration. There may also be special provisions added for parties whose income varies widely from year to year. Crafting your own agreement allows you to consider your family’s special circumstances.

[1] See NY Domestic Relations Law §§ 236B(5-a) and (6) and Family Court Act § 412.

4.1.3. Alimony: Race, Privilege and Dependency in the Search for Theory

By Twila L. Perry - 82 Georgetown Law Journal 2481

ALIMONY: RACE, PRIVILEGE, AND DEPENDENCY IN THE SEARCH FOR THEORY

INTRODUCTION

The development of a theory of alimony is an issue that has received considerable attention from both family law and feminist scholars in the past several years.1 Scholars who address this issue are seeking to answer what has proven to be a most vexing question: What is the theoretical basis for imposing a legal duty on one person to support another to whom he or she is no longer married? Although the legal basis of alimony has always been somewhat murky,2 the move to articulate a theory of alimony has become more urgent in light of recent developments such as no-fault divorce, increased opportunities for women in the workplace, and decreased governmental involvement in family relationships.3 These developments have tended to undermine the traditional need and fault justifications for alimony.4 Scholars, in struggling with the problem of creating a new theory of alimony, have explored the problem from a number of perspectives, including those of contract law,5 partnership law,6 law and economics,7 human capital theory,8 and tort law.9

At the same time that family law scholars have struggled to develop a theory of alimony to protect women who care for their homes and families, there have been other developments in legal scholarship. One is a burgeoning literature in feminist legal theory.10 Another is the emergence of a racial critique of feminist theory. The major criticism lodged by the latter is that all too often, feminist analysis is based on the assumption that all women are white and middle or upper-middle class.11 As a result, it is argued, feminist theory is largely irrelevant to the lives of poor women and, in particular, poor women of color.

This article draws from the intersection of theories of alimony, feminist legal theory, and the racial critique of feminist legal theory. The goal of the article is to explore the implications of the search for a theory of alimony for those women who, as a practical matter, are least likely to benefit from this effort-women who are neither well-to-do nor white.

Statistics indicate that Black12 women are awarded alimony at a significantly lower rate than white women. In 1987, over eighteen percent of currently divorced or separated white women had been awarded alimony at the time of their divorces, while less than eight percent of Black women had received such an award.13 It also appears that women in higher income marriages are more likely to receive alimony than women in lower income marriages.14 In light of this data, it is important that we examine the implications of women scholars devoting substantial attention to an issue that is of practical importance to relatively few women, and especially so few women of color.15 What are the implications for women of color and other poor women of this search for a theory of alimony? Does it serve to reinforce the differences between women of different classes and races? Or are there ways in which a discourse that seems relevant only to privileged women can be helpful to the struggles of a wider range of women in whose lives gender, race, and class oppression are often experienced simultaneously? Can efforts aimed at developing a theory of alimony both enrich and draw upon other scholarly work directed toward improving the conditions of subordinated groups?

This article will begin by briefly describing the marriage paradigm that has, to a great extent, shaped the discourse on developing a theory of alimony. I will demonstrate that this paradigm has little relevance to the realities faced by most poor women of color and that, accordingly, most of the approaches to alimony based on it have little practical relevance to the lives of these women. I define the issue, however, as more than one of mere irrelevance or exclusion-I argue that the search to develop a theory of alimony may have serious negative implications for poor women of color, especially Black women. Specifically, the paradigmatic model of marriage and divorce has the potential to reinforce the subordination and marginalization of Black women in two ways: first, by reinforcing privilege or an image of privilege for middle and upper-middle class white women in both marriage and divorce, and second, by reinforcing a hierarchy among women in which their value is determined by the presence or absence of legal ties to men, particularly affluent men.16

This article will suggest the need to develop, not simply a theory of alimony, but a feminist approach to alimony that examines that institution in the context of broader issues affecting the lives of a diverse group of women. I will argue that a feminist theory of alimony must examine alimony, not as a single issue, but as part of a larger inquiry involving issues of work and family in women's lives. In so doing, it must address questions of patriarchy, dependency, and economic justice for women who care for the children and homes of other women while they work outside the home. Although I will not propose a specific theory that encompasses all of these concerns, I will suggest some of the questions we will need to ask in order to begin that undertaking.17

IMAGES OF DIVORCE

Many people probably form their impressions about divorce from the media. Time and time again we are regaled by the tales of the messy divorce of the Trumps,18 the palimony action against Lee Marvin,19 or the nasty custody dispute between Woody Allen and Mia Farrow.20 Divorce lawyers for the rich and famous are paid handsomely and sometimes command media attention as quasi-celebrities in their own right.21 Law professors tend to write about the divorces of the middle and upper class. Not surprisingly, the question of whether one spouse can receive a financial interest in the other spouse's professional degree has received substantial attention in the law reviews and always makes for interesting discussion in a law school classroom.22 As academics, we are informed by the divorces we hear about from our lawyer friends, the divorces of our middle and upper-middle class friends, or, potentially, our own upper-middle class divorces.

When the law becomes involved in the lives of poor families, the subject is seldom divorce. Instead, the matter is usually one of state intervention.23 Should the child in the case be declared neglected? Should the mother receiving public assistance be forced to participate in a mandatory work program? Should the pregnant, drug-addicted mother be prosecuted? The divorces of the poor do not receive much attention in legal scholarship, and this is not surprising. By definition, poor people have little tangible property to fight over, and the marginal incomes earned by many of the men make substantial alimony awards unlikely.

Thus, instead of engaging in disputes over antenuptial contracts or professional degrees, the low-income woman faced with a divorce may find herself struggling to avoid a slide from mere poverty into complete destitution. The question is often not one of alimony, but of child support-to help ensure that the children have a place to live and food to eat. For the poor, the dispute is not over whether there will be sole or joint custody, the question is whether they can prevent the children from eventually ending up in foster care.

All too often, it is the divorces of the privileged that occupy our thoughts.

Twila L. Perry, Alimony: Race, Privilege, and Dependency in the Search for Theory, 82 Geo. L.J. 2481, 2481–86 (1994)

Alimony: Race, Privilege and Dependency in the Search for Theory

4.1.4 Stuart v. Stuart 4.1.4 Stuart v. Stuart

New York Supreme Court, Appellate Division

155 A.D.3d 1371, 65 N.Y.S.3d 585

2017-11-22

Tracy L. Stuart, Appellant, v Philip J. Stuart, Respondent.

[65 NYS3d 585]

Egan Jr., J.

Appeals from a judgment and an amended judgment of the Supreme Court (O’Shea, J.), entered November 23, 2015 and October 20, 2016 in Chemung County, ordering, among other things, equitable distribution of the parties’ marital property, upon decisions of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1989 and have one child (born in 1996). In April 2012, the husband moved out of the marital residence and the wife thereafter commenced this action for divorce. Following the wife’s motion for pendente lite support, Supreme Court issued an interim order directing the husband to pay, among other things, $7,500 per month in temporary maintenance and $1,841.66 per month in temporary child support. During the ensuing nonjury trial, the parties stipulated to numerous issues regarding equitable distribution of the marital assets and liabilities, and Supreme Court thereafter issued a decision and order, incorporating the parties’ stipulation and awarding the wife, among other things, $9,000 per month in durational maintenance for a period of 10 months, as well as $1,478.15 per month in child support. Upon application of the parties, Supreme Court issued an amended decision and order clarifying an ambiguity with regard to the duration of the maintenance award, and a judgment of divorce was entered in November 2015. Supreme Court subsequently issued an *1372amended judgment of divorce in October 2016. The wife now appeals from both judgments.1

Initially, the wife contends that Supreme Court erred with respect to both the amount and duration of the maintenance award, because, among other things, Supreme Court placed undue emphasis on the husband’s intent to retire when determining the award. “The amount and duration of a maintenance award are addressed to the sound discretion of the trial court, and will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered” (Robinson v Robinson, 133 AD3d 1185, 1186 [2015] [citation omitted]; see Domestic Relations Law § 236 [B] [former (6) (a)]; Barnhart v Barnhart, 148 AD3d 1264, 1267 [2017]).2 “The court need not articulate every factor it considers, but it ‘must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance’ ” (Pfister v Pfister, 146 AD3d 1135, 1137 [2017], quoting Robinson v Robinson, 133 AD3d at 1186). Upon a review of the record and Supreme Court’s written decision, it is clear that the court considered and analyzed all of the relevant statutory factors, including, among other things, the disparity in the parties’ respective incomes, their predivorce standard of living and the husband’s intent to retire following the parties’ divorce.

Supreme Court recognized that the husband’s income at the time of trial, and throughout the duration of the parties’ approximately 26-year marriage, was significantly higher than the wife’s income. The husband was employed as a urologist and, in 2014, earned a gross income of approximately $497,000, which included, among other things, his base salary, a $50,000 transitional bonus, approximately $40,000 in rental income from the lease of a lithotripsy machine3 and certain other supplemental income. The wife, on the other hand, graduated from nursing school in the 1980s and spent approximately 11 years working as an operating room nurse in Canada until such time as the parties relocated to New York in 1994. In *13731996, after the birth of their child, the parties agreed that the wife would stay home to care for the child. In 2003, the wife went back to work as a nurse on a part-time basis, working one day a week at a doctor’s office through 2006 and, thereafter, worked as a basic life support instructor until 2009. The wife subsequently sustained certain orthopedic injuries to her foot, ankle and knee that required multiple surgeries and limited her ability to stand and work for extended periods of time; however, she was not rendered disabled. Upon commencement of the divorce, the wife sought to obtain another nursing position at a local hospital; however, she ultimately elected not to pursue this opportunity and, as of the time of trial, was working full time as an administrative assistant at a high school earning approximately $23,000 per year.4

Although Supreme Court acknowledged the vast disparity in the parties’ incomes prior to the divorce, it appropriately took into consideration the fact that the husband was 65 years old as of the date of trial and, although in good health, indicated his intent to retire in early 2016 and return to Canada upon expiration of his then-current employment contract. Upon his retirement, the record reveals that the husband’s annual income stood to be significantly reduced (see Hendricks v Hendricks, 13 AD3d 928, 929 [2004]), as he did not intend on continuing to practice medicine and was not licensed to practice in Canada. Instead, the husband indicated that he intended to support himself during retirement from the proceeds of his 401(k) plan, Social Security benefits, Canadian pension and the income generated from his medical equipment lease.

In fashioning its maintenance award, Supreme Court clearly recognized that, despite the husband’s impending retirement, his earning potential remained significant and, therefore, it included a provision that, upon expiration of the 10-month durational maintenance award, should the husband earn over $100,000 for any calendar year through July 2026, the wife would then be entitled to a continuing maintenance payment in the amount of $20,000 for that given year. Supreme Court also took into consideration the fact that the wife’s nursing license remained valid and that, despite her physical limitations, she was capable of obtaining more lucrative employment if she so chose. The court acknowledged that the parties’ predivorce standard of living was largely dependent on the husband’s significant earnings; however, it also considered the fact that same was also financed by credit card debt and *1374credited the fact that the husband assumed all such credit card debt held in his name and jointly with the wife. The distributive award to the wife, meanwhile, was significant—she received, among other things, the $160,000 marital residence, the contents of the marital home worth approximately $40,000, a $10,000 motorcycle and half of the husband’s $1.2 million 401(k).5 Upon review, therefore, we find that Supreme Court’s maintenance award struck the appropriate balance between each party’s needs, appropriately taking into consideration their ongoing ability to pay (see McCaffrey v McCaffrey, 107 AD3d 1106, 1107 [2013]; Mairs v Mairs, 61 AD3d 1204, 1208 [2009]), and we perceive no abuse of discretion in the amount or duration of the award (see Cervoni v Cervoni, 141 AD3d 918, 919-920 [2016]).

With regard to the effective date of the maintenance award, however, inasmuch as the final maintenance award was greater than the temporary award fixed in the pendente lite order and as the record reflects that the wife first requested maintenance in her summons and notice—which was served on the husband on June 19, 2012—we find that she is entitled to a retroactive award of maintenance dating back to June 19, 2012 (see Domestic Relations Law § 236 [B] [former (6) (a)]; Settle v McCoy, 108 AD3d 810, 812-813 [2013]). The husband is entitled to a credit for the temporary maintenance paid pursuant to the pendente lite order and certain other voluntary payments that he made to the wife prior to entry of the interim order. To the extent that the exact amount and duration of the husband’s voluntary payments in this regard are not readily ascertainable on the record before us, however, we remit this matter to Supreme Court for a determination as to the appropriate amount of retroactive maintenance owed and the manner in which such sum shall be paid (see Domestic Relations Law § 236 [B] [former (6) (a)]; Bellizzi v Bellizzi, 107 AD3d 1361, 1364 [2013]).

Turning to child support, we find no basis upon which to modify the temporary child support award. With regard to the final child support award, although the wife failed to request in her posttrial submission child support in excess of the $141,000 statutory cap in effect at the time of trial, we nevertheless find that remittal is necessary as Supreme Court failed to articulate the factors it considered in electing not to include income over the statutory cap of $141,000 in its final child sup*1375port award (see Sadaghiani v Ghayoori, 83 AD3d 1309, 1312 [2011]). Further, in determining the child support award, it appears that Supreme Court deducted the husband’s maintenance payments from his income. Indeed, pursuant to Domestic Relations Law § 240 (1-b) (b) (5) (vii) (C), “durational maintenance payments may ... be deducted from a party’s gross income for child support calculations, but only if the court’s order includes an adjustment to the child support obligation upon the termination of maintenance payments” (Smith v Smith, 1 AD3d 870, 873 [2003]). Here, no provision was provided in Supreme Court’s amended decision and order for an adjustment of child support upon termination of the 10-month durational maintenance award and, therefore, it failed to articulate its basis for deducting maintenance from the husband’s income in determining the appropriate amount of child support (see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]). To the extent that the failure to include such an adjustment was an oversight, remittal is necessary to allow Supreme Court to include such a provision if that was its original intent (see Smith v Smith, 1 AD3d at 873). We also agree with the wife that the husband’s child support obligation should have been made retroactive to June 19, 2012, the date the wife made such demand in her summons with notice (see Domestic Relations Law § 236 [B] [7] [a]; Smith v Smith, 116 AD3d 1139, 1142 [2014]; Vertucci v Vertucci, 103 AD3d 999, 1006 [2013]).

Next, Supreme Court did not abuse its discretion in declining to direct the husband to name the wife as sole and irrevocable beneficiary of the husband’s life insurance policies in order to secure his outstanding maintenance and child support obligations (see Domestic Relations Law § 236 [B] [8] [a]; Murray v Murray, 101 AD3d 1320, 1325 [2012], lv dismissed 20 NY3d 1085 [2013]). Indeed, a trial court may, in its discretion, direct a spouse to purchase life insurance to secure payments for the maintenance and support of a dependent spouse or unemancipated child (see Hartog v Hartog, 85 NY2d 36, 50 [1995]; Murray v Murray, 101 AD3d at 1325). Here, although the husband acknowledged at trial that he had removed the wife as the named beneficiary on his life insurance policies, the wife remained the sole beneficiary of his 401(k). Accordingly, insofar as the wife’s maintenance and child support awards were adequately secured by the husband’s 401(k) plan and, in consideration of the substantial distributive award that she otherwise received, Supreme Court did not abuse its discretion in declining to direct the husband to maintain a separate life insurance policy in her favor for such purposes (see Bellizzi v Bellizzi, 107 AD3d at 1364).

*1376Nor do we find persuasive the wife’s contention that Supreme Court should have directed the husband to pay 100% of the child’s college expenses. To the extent that the child was in college at the time of trial and Supreme Court specifically linked the husband’s obligation to pay 75% of the child’s college expenses to the duration of the child support award—increasing such obligation to 100% upon expiration of the child support award—we find no abuse of discretion by Supreme Court in allocating to the husband 75% of the child’s college expenses during the time that he was concomitantly obligated to pay child support (see Matter of Heinlein v Kuzemka, 49 AD3d 996, 998 [2008]).6 Lastly, to the extent that the wife failed to request a share of the husband’s frequent flier miles in her posttrial submission to Supreme Court and insofar as Domestic Relations Law § 236 (B) (5) (d) does not require the equitable distribution award to be equal (see Smith v Smith, 152 AD3d 847, 848 [2017]; Funaro v Funaro, 141 AD3d 893, 896 [2016]), we find no abuse of discretion in Supreme Court declining to award her half of the parties’ frequent flier miles, particularly in light of the substantial other assets that the wife received as part of the distributive award (cf. Fisher v Fisher, 122 AD3d 1032, 1033 [2014]; compare Hale v Hale, 16 AD3d 231, 235 [2005]).

McCarthy, J.P., Lynch, Rose and Rumsey, JJ., concur.

Ordered that the appeal from the judgment entered November 23, 2015 is dismissed, without costs. Ordered that the amended judgment entered October 20, 2016 is modified, on the law and the facts, without costs, by reversing so much thereof as fixed defendant’s child support obligation and failed to award plaintiff retroactive maintenance; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.

4.2 Maintenance calculator 4.2 Maintenance calculator

from www.joyrosenthal.com

The first part of this calculator uses the NYS Maintenance Guidelines Law to help the user determine the amount and duration of Maintenance for any particular couple.

4.2.1. Joy Rosenthal maintenance calculator

The top portion of this follows the Maintenance Guideline Law to determine the guideline amount of maintenance.

Joy Rosenthal maintenance calculator

4.2.2 An Introduction to Our Maintenance and Child Support Calculator 4.2.2 An Introduction to Our Maintenance and Child Support Calculator

Handout for clients

Step by step instructions for using the calculator.

Introduction to Our Maintenance and Child Support Calculator

Many people across the state use the Maintenance and Child Support Calculator we offer on our website (the “Calculator”). You can find it at http://www.joyrosenthal.com/new-york-maintenance-child-support-Calculator/ . This article contains some tips and pointers for using it – it is designed for lay people as well as for lawyers.

Currentness of this article:

· This article was updated in March 2020. “Currently”, where used in this article, means current as of March 2020. The results produced by the Calculator are based on several values that are periodically revised under New York State and federal law; therefore, some of the examples given in this article may differ from results you obtain from the latest updated version of the Calculator.

A few helpful points before we begin:

· The Calculator is simply an informational tool, but it is not legal or tax advice and does not replace the advice and wise counsel of an experienced family law attorney. We strongly recommend that you speak with a New York family law attorney before signing any legal documents relating to the care or support of your family.

· The Calculator only relates to the laws of New York State.

· The law is made in two ways – one is by statutes created by a legislative body (for example, the New York Domestic Relations Law and the Family Court Act), and the other is by case law, which is written by judges. When a judge is making a ruling, she is applying the statute (and prior case law) to the facts specific to the case in front of her. Every family is different, so every ruling is different. Judges use their discretion, which makes it difficult to predict how the law would be applied to the specifics of any particular family’s situation. For instance, two families where the parents make the exact same income might have very different outcomes depending on many factors, including where they live, the children’s particular needs and the parenting arrangement.

· There are notes and instructions throughout the Calculator to help you. Read the small print if you have questions.

· If you click on the symbols that look like this - § - a new screen will appear that will show you the statute associated with this part of the Calculator.

· There are specific lists of variables that judges consider when making their determinations. We have a link to the list of these factors in Note 5 in the Maintenance section and in in Note 6 in the Child Support section.

· Parents who are not married are not required to pay spousal support. To use the Calculator to determine Child Support only, input your income and deductions information in those sections at the top – and skip the Maintenance section. Scroll right down to the Child Support section — in line 33, select “No maintenance” in order to get accurate results for the Child Support calculation.

· You and your ex may decide upon your own financial arrangement – you do not have to follow the guideline amounts. We recommend (and practice) mediation and collaborative law as processes to help you come to agreement on all areas relating to separation and divorce. Please note, however, that such agreement will have to be court ordered before it is enforceable.

· If you would like to save your results, you can print them to paper or to a .pdf file and save them on your computer.

· You might want to experiment with different scenarios in order to get more comfortable using the Calculator. If the results seem strange, revisit each place where you had to make a decision – pay particular attention to the buttons on the side (e.g. use guideline amount from above, use deviation amount from above).

· A few words for clarification:

o Spousal support, spousal maintenance, maintenance and alimony all mean the same thing, for our purposes.

o Parents, parties, and participants also mean the same thing for our purposes. We also refer to people as the payor and the payee.

o The Maintenance payor is the spouse who makes more income, and the payee is the spouse who makes less income.

o Temporary Maintenance is the spousal support paid from one spouse to another between the time the divorce petition is filed and the time the judgment of divorce is signed. Post Divorce Maintenance is spousal support paid after the judgment of divorce is signed. They both use the same formula.

o The Child Support payor is called the non-custodial parent (for Child Support purposes), and the Child Support payee is called the custodial parent.

o If one parent has the children more than 50% of the time, that person is considered to be the custodial parent. The New York Child Support guidelines do not include a more nuanced view of how much time the children spend with each parent – so the same guidelines will apply to a parent who has the children 49% of the time as a parent who sees the children once a month.

o If the children spend the same amount of time with each parent (50% each), the parent with more income is considered to be the non-custodial parent for Child Support purposes. (This would be addressed in the factors listed in Note 6.)

o There are two caps that come into play – they are different:

§ The Maintenance Guideline Law uses a cap on the Payor’s income, which is currently $192,000.

§ The Child Support Standards Act uses a cap on the Combined Parental income, which is currently $154,000.

o The Calculator displays the amounts paid in a variety of frequencies. While support is usually expressed in terms of the amount per year or per month, we have included some other terms as well. Semimonthly is for people who pay support twice a month (e.g. on the 1^st and 15^th day of the month, or 24 times a year), and biweekly is for people who receive support biweekly (e.g. every other Friday, or 26 times a year).

There are 3 parts to the Calculator – the first part is where you put in information about your INCOME and allowable DEDUCTIONS. The second part is the MAINTENANCE calculator. The third part is the CHILD SUPPORT calculator.

INCOME and DEDUCTIONS

· Contrary to what you might expect, the starting point is gross (or total) income -- not net income, or take-home pay. In other words, federal and state income taxes are NOT deducted when considering child support.

· Use the most recent income information that you have available, or the numbers that represent the most accurate picture of your current income. You should use information for the same year for both spouses, if possible.

· If you are employed and receive W-2 income, use Line 1 of the Calculator and type in the amount listed on Box 5 of your W-2 form. (Note: Box 5 includes voluntarily deferred compensation, which is not subject to income tax but is includable as CSSA income.)

· If you are self-employed, use Line 2 of the Calculator and input the amount on Line 12 of your 1040 form.

· The allowable deductions are Social Security, Medicare, and local (e.g. New York City or Yonkers) income tax. If you don’t know what you actually paid (or will pay), you can instruct the Calculator to estimate these deductions.

· There are some other items that will count as income and as deductions – they should be self-explanatory. Click on the § sign next to any line number if you want to see what part of the statute it is referencing.

· Once the income and deductions figures are put in, the Calculator will automatically figure out your adjusted income for the purposes of determining child support. (Note that this is not what people generally refer to as Adjusted Gross Income.) We call it “Adjusted CSSA Income” on the Calculator.

MAINTENANCE (Temporary and Post-Divorce)

· Spousal support is always determined before child support.

· The purpose of spousal support is to help the payee have time to become self-sufficient, and is usually limited in duration.

· There are 2 different spousal support formulas that are used – one is used when the payor is also paying child support, and the other is used when the payor is not paying child support. That is why the Calculator asks you whether there are children, and if so, which parent is considered the custodial parent.

· Once you input the income and deduction information, the Calculator will automatically figure out the guideline amount of spousal support.

· The Maintenance Guideline Law (DRL § 236-B or FCA § 412) caps the payor’s income at a certain amount – currently $192,000. So even if the payor’s income is much higher, only $192,000 will be counted when determining the guideline amount of spousal support.

· If the payor’s income is above the cap, the Calculator will ask you if you would like to apply the formula to the payor’s income above the cap. That would be considered a deviation, since it is not part of the statutory framework.

· The Calculator will ask you if you would like to deviate from the guideline amount of spousal support. If you and your spouse agree on a deviation, press yes, and you can input the amount you will use. You will have to put in the frequency (e.g. $___ per month), as well.

· If neither party will be paying spousal support (e.g. if the parties are not married), use the button that asks if you want to deviate – just put in $0.

· In the section called “Duration of Post-Divorce Maintenance,” you will have the option to input the date of the marriage and the date the divorce action was commenced (or anticipated). The Calculator will then tell you the guideline range of months spousal support would last depending on the length of the marriage.

· Example:

o Let’s take an example of Fred, who earns a salary of $120,000 per year (input in line 1), and Wilma, who is self-employed and earns $80,000 per year (input in line 2). This is their total gross income.

o Deductions: (Note that the following results are based on 2019 FICA and NYC tax rates; every year in January or February the Calculator is updated to reflect the rates that were in effect during the prior year.) For our example, let’s estimate their FICA taxes – the Calculator will automatically input $7,440 for Fred and $9,161.12 for Wilma on Line 17, and $1,740 for Fred and $2,142.52 for Wilma on Line 18 (Wilma’s is higher because she is self-employed.) Then tell the Calculator to estimate their NYC taxes. For our example, let’s say that Wilma will claim both children as dependents, so input 2 on Line (i) for Wilma. The Calculator will automatically fill Line 19 - $4,153.12 for Fred and $2,306.14 for Wilma. (For most people having simple income and tax situations, it will only be necessary to enter the number of dependents claimed on Line (i) to estimate NYC or Yonkers income tax. If Lines (d), (e), (h), & (l) apply to your situation, the estimate will be more accurate if these amounts are included. Click the “Instructions & Disclaimer” link in the NYC/Yonkers tax section of the Calculator for more information about those lines.)

o Line 25 will total the deductions and Line 28 will give their Adjusted CSSA Income -- $106,666.88 for Fred, and $66,390.22 for Wilma.

o Next, I am assuming that Wilma is the primary custodial parent of the kids (call me old fashioned…)

o The Calculator will go through the calculations and give you the results for the Guideline Amount of Maintenance. You will see the result expressed in different payment frequencies. In our case, Fred would be paying Wilma $2,832.62 per year, or $236.05 per month.

o Next, the Calculator shows what their respective incomes are after paying the Guideline Amount of Maintenance, and gives you the opportunity to calculate how long it would be payable. In our case, Fred’s income will be $103,834.26 after paying Maintenance, and Wilma’s will be $69,222.84 after receiving it.

o Remember: if Fred’s income is over the statutory cap of the payor’s income (currently $192,000), the guideline amount will only go up to the cap unless you instruct the Calculator to deviate.

CHILD SUPPORT

· There are two parts to Child Support –

o basic child support, which is a dollar amount that one parent pays to the other to cover the essential costs such as food, clothing and shelter; and

o add-on expenses, which includes expenses that change over time and may be particular to each child, for instance, the costs of childcare or school, camp, activities, or unreimbursed medical expenses.

· Both parents are responsible for supporting each child until that child is “emancipated.” This is usually when the child reaches the age of 21 in New York. However, it could be a little later, if the child is a full-time student, or earlier if the child is really self-sufficient.

· Line 32 of the Calculator restates the Adjusted CSSA income from above.

· Just above that, enter the number of children of both parents. There are statutory percentages of income based upon the number of children. For one child, the State considers that the Child Support amount is 17% of the combined parental income, for two children the percentage is 25%, etc. The Calculator will determine the appropriate percentage.

· If there is spousal support being paid, the Calculator will automatically include it as income for the payee and deduct the same amount from the payor’s income. In Line 33, select the button to use the guideline amountof spousal support, the deviation you specified in the Maintenance Section, or no maintenance. (If the parents aren’t married select no maintenance.)

· The NYS Child Support formula is based on the combined parental income. Each parent is responsible for paying his or her pro rata share (that is, the amount in proportion to the total).

· The statutory cap for combined parental income is currently $154,000. The Calculator is designed to calculate the amount of Child Support up to the statutory amount, but you can adjust the amount of the cap. (Again, this is not part of the statutory framework.)

· At various points, the Calculator shows each partner’s income after payments of Maintenance and/or Child Support are made. These results do not factor in any tax consequences that may result from Maintenance payments, and also note that Child Support payments are not technically considered to be income for tax or CSSA purposes.

· Our reading of recent case law is that courts in the New York City metropolitan area (including Westchester and Long Island) often use an income cap much higher than the statute calls for. The case law is wide ranging, but we estimate that it is generally around $300,000 - 350,000 per year.

· You can choose to apply the Child Support percentage to the combined parental income above the cap. If you do that, you will have to specify whether to remove the cap altogether (and apply it to the total combined parental income) or whether you want to “adjust” (or create your own) cap.

· Note that the relative percentages (or pro rata share) of each parent’s income remains the same, no matter what the cap is. However, you can see that the basic Child Support payment is higher once the cap on combined parental income is removed.

· Again, the Calculator will show you how much income each partner will have after paying or receiving Maintenance and Child Support.

· If you would like the Summary and Comparison Section to show an amount above the statutory cap, remember to click Yes where it asks if you would like to deviate from the Basic Child Support Obligation. You can then click on whether you would like to use the adjusted cap from above, or specify another amount.

· Example: Going back to our example:

o Let’s say Fred and Wilma have 2 kids, and we use the Guideline Amount of Maintenance. Now Fred’s adjusted income, listed in Line 34, is $103,834.26 and Wilma’s is $69,222.84.

o Their combined parental income, listed in Line 35, is $173,057.10. (Notice that this is higher than the statutory cap of $154,000 in combined parental income.) Fred earns 60% of the total, and Wilma earns 40% of the total.

o Fred and Wilma should pay 25% of their combined parental income (up to the cap) in child support. In other words, the Child Support amount is $38,500 per year, which is 25% of $154,000 (or $3,208.33 per month). Fred is responsible for 60% of that, or $1,925 per month, and Wilma is responsible for 40%, or $1283.33 per month.

o So, assuming Fred pays the statutory amounts of spousal and Child Support to Wilma, he will pay her $236.05 in spousal support, + $1,925.00 in Child Support per month – plus 60% of the add-on expenses.

o The next line shows that after paying both, Fred’s Adjusted CSSA Income will be $80,734.26 and Wilma’s will be $92,322.84.

o If you want to see what would happen if you applied the formula to the total combined income, click Yeswhere it asks if you want to apply the Child Support percentage above the cap, and then click Remove the Cap.

o This shows that Fred would pay Wilma a total of $25,958.57 per year, or $2,163.21 per month (instead of the $1,925). Now, Fred’s Adjusted CSSA Income will be $77,875.69 and Wilma’s will be $95,181.41.

o If you are going to use this deviation, click Yes under the question “Deviate from the Basic Child Support Obligation?” and select “Use adjusted-cap result from above” and you will see the results reflecting in the Summary & Comparison Section.

SUMMARY & COMPARISON

· The last section of the Calculator shows how much the payor is responsible for paying now (up to the Maintenance and Child Support caps only), and how much the payor will pay if Maintenance ends before child support, or if Child Support ends before maintenance. It is really a speculative tool in most cases, since incomes will change by then, but is there for reference and information.

· Finally, if you have specified any deviations from the guideline Maintenance or Child Support above, the deviations are displayed for the purpose of comparing them to the guideline amounts.

We hope this guide is helpful – speak to your lawyer or feel free to contact us with questions or clarifications.

New York Domestic Relations Law Fall 2020

A guide to Family Law In New York