NY Divorce at a Glance. Part 3 of 8: Spousal Maintenance

A guideline for calculating final orders of spousal maintenance for divorces filed after January 23, 2016

1. Introduction

   In 2015, New York radically changed how spousal maintenance is determined by abandoning a needs based model which left maintenance in the discretion of the court. That model was replaced by an income shifting formula model that uses a mathematical formula to determine maintenance.
   
   The formula is applied to income up to the statutory cap, which is adjusted periodicly for inflation.

2. Step 1 - Determine both spouse's income

   The income for both spouses is defined as being identical to the income for child support as defined by the child support law, DRL 240(1-b) with one exception - the deduction of maintenance from income is not allowed.
   
   Income includes the following:
   (i) gross income as should have been reported in the most recent federal income tax return.
   
   (ii) investment income
   
   (iii) if not already included, then add the following:
   
   (A) workers' compensation,
   
   (B) disability benefits,
   
   (C) unemployment insurance benefits,
   
   (D) social security benefits,
   
   (E) veterans benefits,
   
   (F) pensions and retirement benefits,
   
   (G) fellowships and stipends,
   
   (H) annuity payments,
   
   (iv) the court may, at its discretion add the following to income if appropriate:
   
   (A) non-income producing assets,
   
   (B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment
   
   (C) fringe benefits
   
   (D) money, goods, or services provided by relatives and friends;

3. Maintenance up to the cap and paying child support

   (a) (20% of payor's income) - (25% of payee's income) = ________.
   
   (b) 40% X (payor's income + payee's income) = _________.
   
   (c) Take the answer from (b) and subtract 100% of the payee's income, giving _______________.
   
   (d) Take the lower of either (a) or (c).
   
   (e) The guideline amount is the amount taken in (d), but if its less than zero then the maintenance shall be zero.
   
   (f) If the maintenance payments would reduce the payor's income below the self support reserve, then the maintenance shall be the payor's income minus the self support reserve. If the income is less than the self support reserve, it shall be presumed that no maintenance should be awarded.
   
   (g) Maintenance shall be calculated prior to child support. Maintenance shall be subtracted from the payor's income and added to the payee's income when determining child support.

4. Maintenance up to the cap and not paying child support

   (a) (30% payor's income) - (25% payee's income) = ___________.
   
   (b) 40% X (payor's income + payee's income) = ___________.
   
   (c) Take the answer from (b) and subtract 100% of the payee's income, giving _______________.
   
   (d) Take the lower of either (a) or (c).
   
   (e) The guideline amount is the amount taken in (d), but if its less than zero then the maintenance shall be zero.
   
   (f) Post divorce maintenance shall calculated before determining child support. The maintenance shall be subtracted from the payor and added to the payee in determining income for child support.
   
   (g) If the maintenance payments would reduce the payor's income below the self support reserve, then the maintenance shall be the payor's income minus the self support reserve. If the income is less than the self support reserve, it shall be presumed that no maintenance should be awarded.

5. If the Income Exceeds the Cap

   (1) Apply the guidelines for income up to the cap.
   
   (2) For income which exceeds the cap, the court has discretion as to the amount of additional maintenance. The court must take into consideration one or more of the factors listed in paragraph E.
   
   (3) The court is required to state the factors either in writing or on the record.