New Maintenance Rules Increase Temporary Support

In 2010, New York adopted a new system for calculating interim maintenance awards during divorce cases. Although adopted to facilitate the adoption of no-fault divorce, many matrimonial lawyers find the system confusing and potentially inequitable. Under the old system, judges used a "balancing act" to determine temporary maintenance by balancing a couple's income and expense records. The goal was to maintain the status quo and pay for necessities like housing and health insurance while the post-divorce maintenance settlement details were worked out. Under the new legislation, courts are to consider 19 financial factors and to use a formula. Judges retain the discretion to discard the formula results, but they must rebut the presumptive amount provided in the statute. Although these additional factors may sound helpful, they actually create problems when the statute leaves gaps, requiring judges to answer questions on their own. One problem with the new statute is the statute does not mention who is responsible for the "add-on" expenses needed to keep a household running, i.e. the mortgage and taxes. Another criticism is that the new law says the value of income to be distributed equitably is to be factored into the equation as income for interim maintenance purposes. This is different from how assets that are distributed equitably have always been calculated at the end of a divorce, not at the beginning of the allocation of temporary maintenance.