In October 2010, a temporary maintenance statute was enacted in New York State for non-monied spouses which set forth a formula utilizing the parties income. The issues in setting forth the calculation is problematic as it requires the courts to consider factors that may only be established after a full trial and extensive discovery. Despite these issues the temporary maintenance statute creates a substantial presumptive entitlement to the non-monied spouses and provides consistently and predictability in calculating temporary maintenance awards.
It should be noted that in the event the court finds the presumptive temporary award would be unjust or in appropriate, the court may adjust the temporary maintenance award upon consideration of the following factors as provided in the Domestic Relations Law § 236(B)(5-a)(e)(i).:
a) the standard of living of the parties established during the marriage;
b) the age and health of the parties;
c) the earning capacity of the parties;
d) the need of one party to incur education or training expenses;
e) the wasteful dissipation of marital property;
f) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
g) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
h) 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;
i) the availability and cost of medical insurance for the parties;
j) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;
k) the inability of one party to obtain meaningful employment due to age or absence from the workforce;
l) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
m) the tax consequences to each party;
n) marital property subject to distribution pursuant to subdivision five of this part;
o) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed
education, training, employment or career opportunities during the marriage;
p) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
q) any other factor which the court shall expressly find to be just and proper.
If you would like to discuss your family law issue please call my office at (516) 739-2020.