How to Calculate Temporary Spousal Maintenance in New York

Temporary spousal maintenance is money paid from the higher-earning spouse to the lesser-earning spouse.  It is typically applied during the pendency of the divorce but it can also be used as a guideline when a couple is married for relief in Family Court.  I have received a lot of  phone calls lately from folks whose spouse decides to cut them off financially, either before or during a divorce.  With the enactment of the “no fault” divorce law a few years ago, we now have a statutory formula to calculate temporary spousal maintenance. I will delve into durational or rehabilitative maintenance after a divorce at a later blog.

Put simply, temporary spousal maintenance is calculated by taking the lesser of the following:

A) 30% of the higher earning spouse’s income up to the “income cap” (currently 524K), minus 20% of the lower earning spouse’s income;

or

B) 40% of the combined income of both spouses, minus the income of the lower earning spouse.

Helpful resources can be found on the New York State Court’s website here (worksheet) and here (calculator).  The definition of income takes into account deductions including, but not limited to child support payments, and local taxes, and other spousal support obligations already determined.  For simplicity sake, we will assume here that the income figures are after FICA, Medicare and local tax.

Here are a few examples of how the calculation would work:

Example 1: One spouse earns $100,000 per year and the other spouse earns $50,000 per year.

a) Take 30% of the income of higher income spouse = $30,000

b) Subtract 20% of the income of the lower income spouse ($30,000 – $10,000) = $20,000 per year

or

c) Calculate 40% of the total income = $60,000

d) Subtract the lower income ($60,000 – $50,000 = $10,000 per year

The result would be the lesser of (b) or (d), which in this case is $10,000 per year.

Example 2: One spouse earns $800,000 per year and the other spouse earns $30,000 per year.

a) Take 30% of the first $524,000 = $157,200

b) Subtract 20% of the income of the lower income spouse ($157,200 – $6,000 = $151,200 per year

or

c) Calculate 40% of the total income = $332,000

d) Subtract the lower income ($332,000 – $30,000) = $302,000 per year

The result would be the lesser of (b) or (d), which in this case is $151,200 per year.

Example 3: One spouse earns $2,000,000 per year and the other spouse earns $15,000 per year.

a) Take 30% of the first $524,000 = $157,200

b) Subtract 20% of the income of the lower income spouse ($157,200 – $3,000 = $154,200 per year

or

c) Calculate 40% of the total income = $806,000

d) Subtract the lower income ($806,000 – $15,000)  = $791,000 per year

The result would be the lesser of (b) or (d), which in this case is $154,200 per year.

Please take note that the above calculation only applies to the first $524,000 of a spouse’s income.  If the high earning spouse makes over $524,000 per year, the court will also consider the factors provided in DRL Section 236 Part B (5-A)(c)(2)(a) in calculating temporary maintenance.  These factors are:

(i) the length of the marriage;

(ii) the substantial differences in the incomes of the parties;

(iii) the standard of living of the parties established during the marriage;

(iv) the age and health of the parties;

(v) the present and future earning capacity of the parties;

(vi) the need of one party to incur education or training expenses;

(vii) the wasteful dissipation of marital property;

(viii) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(ix) the existence and duration of a pre-marital joint household or a pre-divorce separate household;

(x) acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment;

(xi) the availability and cost of medical insurance for the parties;

(xii) 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;

(xiii) the inability of one party to obtain meaningful employment due to age or absence from the workforce;

(xiv) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;

(xv) the tax consequences to each party;

(xvi) marital property subject to distribution pursuant to subdivision five of this part;

(xvii) 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; and

(xviii) 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.

If after calculating maintenance, a spouse thinks the award is unjust, he or she can ask the court to vary it based on DRL Section 236 Part B (5-A)(a)(1).

The benefit of the temporary maintenance calculation is that it provides predictability and consistency of awards.  However, this calculation can disproportionately redistribute income (sometimes leaving the higher earning spouse with substantially less income per month than the lower earning spouse) and can result in a drastic downgrade in the standard of living for a spouse by not considering income over $524,000.  In all cases, spousal support is a deduction for child support income purposes.

If you are going through a divorce, I highly recommend consulting with an attorney.  Even though the temporary spousal support guidelines are statutory, a spouse still has to ask the court for it by motion or Order to Show Cause. The procedure for doing so can vary slightly depending on the county that you are in.  Temporary spousal maintenance is used during the pendency of the divorce action (pendente lite) but that can be for a long period of time depending on the complexity of the divorce.  It’s important that both parties have numbers they can live with (literally).