Maintenance in New York Divorce Actions
Temporary and Pendente Lite Maintenance for Actions filed between October 12, 2010 and October 24, 2015
DRL 236-B(5-a) (pre-amendment)
By J. Douglas Barics
Updated March 2016
For Part 1 of this article see Introduction to Maintenance
For matrimonial actions filed between October 12, 2010 and October 24, 2015, the pendente lite maintenance is determined by the original provisions of DRL 236B(5-a). This statute has been significantly amended and does not apply to matters filed on or after October 25, 2015.
Prior to October 12, 2010, pendente lite maintenance was determined by at the court's discretion. Temporary support awards could range from pure direct support of pendente lite alimony to a directive were the monied spouse was to continue to pay various ongoing expenses during the divorce, or a combination of the two. The premise behind these awards was to set an amount that was enough to tide over the more needy party until the trial. Pendente lite maintenance was not to determine the correct ultimate distribution. See Iannone v. Iannone. The reasoning behind this old approach was that requests for pendente lite maintenance are made early in a divorce action, meaning that it was difficult if next to impossible for the court to have all the information it needed to consider in all the relevant factors. Much of the information would come from discovery and a trial, at which time the court would make a final award based upon the factors listed in the old DRL 236-B(5).
On October 12, 2010, New York abandoned this discretionary needs based approach for temporary maintenance and replaced it with a mathematical formula that only took income into account. The formula was set out in DRL 236 B (5-a), as a new provision to Domestic Relations Law 236 B. No change was made at that time to the discretionary method for awarding final maintenance under DRL 236 B(6).
The original provisions of DRL 236 B(5-a) were significantly amended and no longer apply to new cases, as on October 25, 2015, a new formula for DRL 236 B(5-a) took effect. Final maintenance was also revised and DRL 236 B(6) was significantly amended.
For any matrimonial action filed after October 12, 2010 through October 25, 2015, the following rules apply. For actions filed on or after October 26, 2015, the amended DRL 236 B(5-a) applies.
The new section to DRL 236 B is subsection 5-a, which for the first time provides an entire subdivison on temporary maintenance. It does away with the old discretionary approach, and uses a mathematical formula. For temporary maintenance under the original 5-a, only the party's incomes are used. No consideration is given to the length of the marriage, the age or health of either party, nor is any other factor considered in making this award. Instead, if the court finds the formula approach to be unjust or inappropriate, the court may deviate from the formula based on a list of factors contained in the statute.
The mandatory maintenance applies if one spouse's income is less than two-thirds of the other spouse, and the divorce action was filed when then original DRL 236 B(5-a) was in effect.
2. THE FORMULA FOR TEMPORARY MAINTENANCE (pre-amendment)
The original formula for temporary maintenance is calculated using two formulas, and the result that gives the least support is used.
(a) Formula 1 Calculation
30% of the higher income - 20% of the lower income, DRL 236-B(5-a) (c)(1)(a) or
(b) Formula 2 Calculation
40% of the combined income - 100% of the lower income. DRL 236-B(5-a)(c)(1)(b)
3. INCOME CAP (pre-amendment)
Income was capped at $500,000 for these calculations. The court could consider income over $500,000 under the original DRL 236 B(5-a)(c)(2)
4. DEVIATION FROM THE FORMULA (pre-amendment)
The court was authorized to deviate from the automatic maintenance calculations upon a finding that the guidelines are unjust or inappropriate. DRL 236-B(5-a)(e)
(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.
It was unclear if the court may deviate from the automatic rules by a simple opposition to motion for automatic maintenance, or whether a cross motion was necessary. This issue was never resolved before the statute was replaced with the new subsection (5-a).
5. PROBLEMS WITH ORIGINAL TEMPORARY MAINTENANCE PRIOR TO AMENDMENTS
Since awards made under the automatic rules no longer tide over the needy spouse during the divorce action, but instead use an income shifting approach, the result undercuts the language of the new counsel fee statute. Under the revised DRL 237, there is a presumption that the monied spouse must pay the non monied spouse's counsel fees. However, since the automatic maintenance presumes to equalize the incomes of both spouses, the distinction between the spouses is blurred, even more so when child support is factored in.
Another problem is the automatic rules do not consider the specifics for each case. Under the rules, the award will be the same for a very short term marriage as it will for a long term. A healthy spouse will be awarded the same as an ill spouse. Nor will age be a factor. While predictability does have its merits, it comes at a cost of disregarding the unique facts to each case.
The lack of any factor other than income is creating another problem. Spouses who are not entitled to maintenance under the totality of their circumstances are rewarded for filing and then delaying a final resolution of the divorce for as long as possible.
The Supreme Court of Kings county decision Scott M. v. Ilona M. provides a detailed discussion of many of the issues present in the original DRL 236 B(5-a).
Section (5-a) has been significantly revised, and the amendments took effect on October 25, 2015.
Continued in Part 3
The article "Maintenance in New York Divorce Actions Part 2 Temporary and Pendente Lite Maintenance for Actions filed before October 24, 2015" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at email@example.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com.
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J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.