November 18, 2011: New York State Courts Recommended Spousal Support Changes
By April Lopez

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A recently-enacted formula to calculate temporary spousal maintenance should be applied more broadly in the New York state courts, according to the New York City Bar Association. Low-income residents would benefit from this recommendation.

Based on the spouses' income, state Supreme Court judges use a mathematical formula to calculate temporary maintenance. This is granted to financially-strapped spouses pending the outcome of court proceedings.

The statute based temporary maintenance on the needs of the spouse with the lower income in the past. The new maintenance formula, which currently only applies in Supreme Court, must also be used in Family Court, the bar association recommends.

According to the report, they cannot demonstrate to a judge the need for support since litigants in Family Court tend to be low-income and pro se. The report says, "As a result of this ambiguous statutory guidance, many Family Court litigants do not obtain spousal support since they cannot afford counsel who can demonstrate that spousal support is warranted." The new formula does not apply to permanent maintenance.

The level of permanent maintenance is based on a spouse's cost of living as well as medical, educational and other expenses and is left to the judge's discretion.

The recommendations have been submitted to the state Law Revision Commission.

The formula is aimed at overhauling the way divorce proceedings are treated by courts. It is part of a package of bills that includes a law that enables the less-moneyed spouse to collect attorneys' fees in most cases and the creation of no-fault divorce.

The bar association also wants the commission to conduct a thorough review of the practice of classifying degrees, licenses and certifications as a financial asset for the purposes of calculating permanent maintenance, aside from the recommendation that the guidelines for temporary maintenance in matrimonial cases also apply to support awards in family court.

The association said the use of EEC in maintenance calculations is unfair because it treats future earnings as both income and assets, allowing courts to "double-dip" when deciding maintenance levels.

The commission was looking at the entire bar association's concerns, according to the head of the Law Revision Commission, Rose Mary Bailly.

The legislature should abolish the use of enhanced earning capacity in calculating maintenance awards and do away with the formula for temporary awards, the New York State Bar Association suggested in Nov. 2010, allowing courts to make awards on a case-by-case basis. The formula for permanent maintenance should apply only to couples with a combined annual income below $130,000, the state bar association proposed, since wealthier couples tend to have more complicated financial issues.

For any divorcing couples, the current formula applies to the first $500,000 of income. The report by the Law Revision Commission will be released in December.

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