Spousal Maintenance During a Divorce

At our firm, we have extensive experience handling divorce cases. Below we have listed basic questions and answers on the common subject of spousal maintenance. It’s important to consult with an attorney prior to commencing any action.

How Are Temporary Support Awards for a Spouse Determined?

Due to recently enacted amendments effective October 13, 2010, New York has a new formula to determine the amount of temporary spousal maintenance to be paid. Temporary maintenance is support paid by the higher income spouse to the lower income spouse during the time that a divorce case is pending. The law does not apply to “spousal support” ordered by the Family Court, which is “a fair and reasonable sum … having due regard to the circumstances of the respective parties”; however, the Family Court is likely to turn to the divorce court guidelines in setting their pre-divorce support orders. Temporary maintenance terminates upon the issuance of a final award of maintenance. Family Court orders terminate when the divorce court makes an order. Also, the new law provides for a presumption that counsel fees should be awarded to the “less monied spouse” so as to enable representation at the commencement of the action.

Income available for spousal support is defined in a similar way as income under child support laws. In addition to earnings reported on the most recent federal income tax form, income includes unemployment benefits, Social Security, worker’s compensation, disability benefits, veteran’s benefits, pension and retirement benefits, fellowships and stipends and annuity
payments, as well as investment income. The court may also include income from other sources such as non-income producing assets, employment perquisites (“perks”), and goods and services furnished by friends and relatives. The court may “impute income” to a spouse who has reduced his or her income by choice, or if the court believes the spouse is not being truthful about his or her true finances.

Certain deductions from income are allowed, including other child support, alimony or maintenance actually paid, non-reimbursed business expenses, public assistance, supplemental security income, NYC or Yonkers income taxes, and FICA taxes. Also, there is an income cap of $500,000 a year of the payor’s income, which will be adjusted by the CPI every two years. Special rules apply to couples with income over this amount. Conversely, there are provisions to protect spouses who are poor. The actual formula is complicated and you want to use an internet on-line calculator. Your attorney will be able to calculate the formula for you.

How is Health Insurance maintained?

When an action for divorce is commenced in Court, an “automatic order” is issued providing that neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect. The Family
Court can also order that a spouse enroll eligible dependents or continue existing available health insurance benefits.

Most insurance policies do not provide for continued family coverage for an ex-spouse, other than limited time “COBRA law” coverage, which is often very expensive. If you need additional time to secure other coverage, the law provides that you or your spouse can request a 30-day delay in the divorce case, to secure other insurance coverage.

Can Spouses Make their Own Agreement Regarding Temporary Maintenance?

Spouses can enter into settlement agreements in which the amount of temporary maintenance differs from the amount that would have been set according to the guidelines. There are conditions to private arrangements, and if they are not followed then the agreement is unenforceable. Most importantly, both parties must be informed about the law and the
“presumptive amount” which would be due under the law must be specifically stated.

If you already have a valid Separation Agreement or Pre-marital Agreement providing for maintenance, then the new law does not apply to you. A valid agreement must be in writing and properly acknowledged (notarized using specific language).

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