Regardless of whether you call it alimony, spousal support, or spousal maintenance, these support payments can be challenging to calculate, particularly for those with incomes above the basic thresholds. While New York law provides formulas to set amounts, judges have considerable discretion to deviate from the formulas and set their own outcomes.
Similarities and Differences Between Temporary Maintenance and Post-Divorce Maintenance
Different statutes apply depending on whether a maintenance award will be paid while the divorce remains pending or after it has been finalized. Temporary maintenance paid during divorce proceedings is based on N.Y. Dom. Rel. Law §236(B)(5-a) while post-divorce maintenance payments are calculated according to N.Y. Dom. Rel. Law §236(B)(6).
For both types of support, the spouse with a higher income will generally be paying support to the spouse with a lower income. Lawmakers regularly raise the cap, which currently sits at $203,000 but will rise in accordance with a formula based on changes in the consumer price index.
Added Calculations for High-Income Payors
Maintenance awards are based on two sets of calculations which are performed on the first $203,000 of combined income. The first calculation is based on subtracting 25% of the recipient’s income from 20% of the payor’s income. The second calculation is based on taking 40% of the parties’ combined income and subtracting the recipient’s income from 40% of their combined income. Whichever amount is less would presumptively result in the maintenance award of the base maintenance amount unless other factors require an adjustment.
When the combined post-divorce income is above the cap level, and then the court has the discretion to award additional maintenance based on factors that include:
- the age and health of the parties;
- the present or future earning capacity of the parties, including a history of limited participation in the workforce;
- the need for one party to incur education or training expenses;
- the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
- the wasteful dissipation of marital property, including transfers or encumbrances, made in contemplation of a matrimonial action without fair consideration;
- 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. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
- the availability and cost of medical insurance for the parties;
- the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
- the tax consequences to each party;
- the standard of living of the parties established during the marriage;
- the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
- the equitable distribution of marital property and the income or imputed income on the assets so distributed;
- the contributions and services of the payee as a spouse, parent, wage earner, and homemaker and to the career or career potential of the other party; and
- any other factor which the court shall expressly find to be just and proper.
Make Sure the Court Knows All the Factors That Weigh in Your Favor
Maintenance payments made by high-income earners can vary tremendously depending on how judges exercise their discretion. At Nolletti Law Group, we understand how to ensure that the court has all the factors that weigh in your favor regarding support amounts, particularly when it comes to determining actual income for business owners, income which varies greatly from year to year, and others in unique positions. We invite you to schedule a consultation to learn more about how we can get the arrangements you deserve.