In March of 2010 Attorney Justin Kelsey of Kelsey & Trask, P.C. was contacted by the NYS Law Revision Commission because of his involvement in co-authoring the Divorce Spousal Support Calculator. The NYS Law Revision Commission was asked by a member of the New York State Assembly to investigate how other states were addressing the issue of alimony formulas. Attorney Kelsey discussed the issues at length during a telephone conversation with the executive director of the Commission and expressed his opinion (as described in a past blog post) that a formula at least has the advantage of treating everyone the same and offering consistency to the treatment of alimony by different Judges. It is possible that Attorney Kelsey played some small part, therefore, in the newest changes to New York's alimony provisions.
In addition to adding No-Fault Divorce, a recent New York law that went into effect this month also contains a formula for calculating "temporary maintenance." This temporary spousal support defined in New York Domestic Relations Law Section 236 Part B(5-a) only lasts until either party dies or a final award of maintenance is awarded under Part B(6). Although, there is no formula for post-divorce maintenance, the temporary maintenance formula would likely be instructive for long-term maintenance in many cases.
Similar to the Massachusetts statute, post-divorce maintenance is based on numerous factors including length of the marriage, age and health of both parties, income-earning capacity, needs of the children etc. The calculation for temporary support in the new statute, however, is based on a formula, with the ability to deviate if application of some of these same factors suggests the calculated award is unfair. Essentially this sets up the presumption of a formula with the ability for parties to still argue against the use of the formula.
The formula is explained in Appendix B of the Temporary Maintenance Guidelines Worksheet available on the NY State Court's website. Essentially it calculates whether the payee's net income is more than 2/3 of the payor's net income, in which case there is no alimony award. If the payee's net income is less than 2/3 of the payor's net income then the award will be the lessor of
a. 30% of payor's net income minus 20% of payee's net income; or
b. 40% of the total net income of both parties minus the net income of the payee.
In addition there is a low income adjustment in some cases and the temporary maintenance formula only applies for payors whose net annual income is below $500,000.
For more information and a critique of this new law read this news story on YNN, or this blog post on Legal Match Law Blog.
We will not be updating the Divorce Spousal Support Calculator to include this formula at this time because the New York formula deals only with temporary maintenance orders, while the other formulas currently included in the calculator are intended for post-divorce support.