Matrimonial and Family Law

Maintenance, Child Support, And Counsel And Expert Fees

(a) Spousal Maintenance (“Alimony”)

What most people call “alimony” or “spousal support” is referred to as “maintenance” under the New York Domestic Relations Law. Based upon various factors set forth in our statute, an award of maintenance may be permanent (i.e., life-time) or limited in duration. Maintenance also terminates upon the death of either party, the remarriage of the recipient spouse, and certain other circumstances delineated in our statute.

Maintenance generally falls into two categories, namely: (1) maintenance to be paid while the action of divorce is pending, which is called temporary or interim maintenance, and (2) maintenance to be paid after the divorce.

In 2015, New York enacted a spousal maintenance law that modified the guidelines for determining the amount of temporary maintenance to be paid while the divorce case is pending and also adds guidelines for post-divorce maintenance as well as an advisory schedule setting forth how long maintenance payments should continue after the divorce.  The temporary maintenance provisions became effective for divorce actions filed on or after October 25, 2015.  The other provisions of the law apply to divorce actions filed on or after January 23, 2016.

The law provides that the “income cap”—the highest amount of the payor spouse’s annual income to be considered for calculating presumptive maintenance—is $178,000 per year (subject to cost of living adjustments).  The courts may consider income over the cap employing a multi-factors analysis.

The formulas are as follows:

IF CHILD SUPPORT WILL BE PAID TO THE PERSON RECEIVING SPOUSAL MAINTENANCE:

Step 1:  Subtract 25 percent of the payee’s income from 20 percent of the payor’s income (capped at $178,000).

Step 2:  Multiply the sum of the payor’s income (capped at $178,000) plus the payee’s income by 40 percent, and then subtract the payee’s income from the result.

Step 3:  The lower figure of Step 1 and 2 will be the presumptive amount of maintenance pursuant to the guidelines.

IF CHILD SUPPORT WILL NOT BE PAID TO THE PERSON RECEIVING SPOUSAL MAINTENANCE:

Step 1:  Subtract 20 percent of the payee’s income from 30 percent of the payor’s income (capped at $178,000).

Step 2:  Multiply the sum of the payor’s income (capped at $178,000) plus the payee’s income by 40 percent, and subtract the payee’s income from the result.

Step 3:  The lower figure of Step 1 and 2 will be the presumptive amount of maintenance pursuant to the guidelines.

If a payor’s income exceeds the income cap of $178,000 per year, the court will first apply the guideline formulas set forth above and then decide whether or not to award additional maintenance in its discretion based upon a number of statutory factors.

The durational guidelines use the length of the marriage (from the date of marriage to the start of the action) to calculate how long maintenance payments should be paid.

Specifically, where the parties are married for 15 years or less the advisory duration is between 15% and 30% of the length of the marriage; where the parties are married for more than 15 years but less than 20 years, the advisory duration is between 30% and 40% of the length of the marriage; and where the parties are married for more than 20 years, the advisory duration is between 35% and 50% of the length of the marriage.

When setting the duration of post-divorce maintenance, the court is required to consider certain factors listed in the statute, including anticipated retirement assets and benefits and the retirement eligibility age of both parties. If these are not ascertainable at the time of the decision, the full or partial retirement of the payor spouse with substantial diminution of income shall be a basis for a modification of the award.

Courts are permitted to deviate from the guidelines upon finding that the application of the guidelines would be “unjust or inappropriate” (based on consideration of the factors listed in the statute). Parties also remain free to enter into agreements that deviate from the guidelines.

Unless the parties enter into an agreement providing otherwise, maintenance payments re tax-deductible for the paying spouse and taxable to the recipient spouse.

(b) Child Support

The basic child support obligation to be paid by the non-custodial parent is usually based upon a percentage of the combined parental income, capped at $143,000, with all or a portion of the parties’ income over $143,000 per year to be included at the court’s discretion. Typically, in higher income cases, the courts will determine a cap for the amount of combined parental income to be considered.  For 1 child the percentage applied to the capped income is 17%, for 2 children 25%, for 3 children 29%, for 4 children 31% and for 5 or more children, the child support award will be no less than 35%. In addition to the basic child support obligation, the non-custodial parent may be obligated to pay for a portion of the child care expenses related to the custodial parent’s employment or education which would lead to employment. Health care expenses for the children are apportioned between the parents based upon their respective incomes. The non-custodial parent also may be directed to pay for  a portion of educational expenses. However, if the amount of the basic child support obligation is unjust or inappropriate, the non-custodial parent’s pro rata share of the child support obligation may be determined by other factors and not by the percentages mentioned above. The parents may avoid the use of the percentages in determining the amount of child support by executing an agreement setting forth the amount of child support which they believe to be fair. An agreement determining the amount of child support must satisfy certain technical provisions of the New York Child Support Standards Act. Neither parent has any obligation to support a child once the child reaches 21 years of age. Child support may end before 21 years of age under certain circumstances such as the gainful employment of the child or the child’s willful refusal to maintain a relationship with the non-custodial parent. Child support payments are not tax-deductible by the payor and are not taxable to the payee.

Another recent change in the law was to clarify that spousal maintenance is to be subtracted from the payor’s income and added to the payee’s income when calculating the amount of child support to be paid.

(c) Counsel and Expert Fees

In 2010, the New York legislature also amended the law, creating a rebuttable presumption that counsel fees will be awarded to the “less-monied” spouse. This law was designed to ensure that both parties are adequately represented from the beginning of the matter. The parties and their attorneys are required to submit a sworn statement, or affidavit, to the court with financial information, including the fees of each party’s counsel, enabling the court to make a counsel fee determination. Additionally, the “monied” spouse may be obligated to pay all or a portion of the fees of one or more expert witnesses.  Fee awards, however, may not cover all of the fees of the less-monied spouse and sometimes the payor spouse may recoup the payments at the end of the case.