If the new statute for pendente lite maintenance is any indication to where the legislatures are headed when they create a new statute for permanent maintenance, then there is very little hope for the stay at home spouse to be left on equal footing with the providing spouse once the marriage disintegrates.
The recently changed statute, DRL §236(B-5)(c) includes a formula, which when applied results in the amount of temporary maintenance. DRL §236(B)(5-a)(c)(1) describes how those provisions are applied:
“(a) the court shall subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap ($500,000) of the payor.
(b) the court shall then multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent.
(c) the court shall subtract the income of the payee from the amount derived from clause (b) of this subparagraph.
(d) the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars.”
This new formula results in a severely disproportionate re-distribution of income and allows for much less discretion than was allowed for under the pre-formulaic version. The statute aims at uniformity amongst divorcing couples. It gives an award to the lesser earner that will be consistent between all judges and departments. It takes the feeling and reason out from the maintenance award. The formula neither considers retribution nor rehabilitation as a reason for providing the receiving spouse with extra means. It does not make room for duration of maintenance, or length of marriage within the formula.
How should the length of marriage be weighted? Should it be a factor at all? Judges surely considered length of marriage as a factor for the amount and duration of maintenance when they had full discretion in making the award. Judges were able to consider the position the parties without feeling obligated to abide by a formulaic version of a statute. Any meaning or need for maintenance is clearly lost by merely applying a formula.
Will courts consider the formula unjust or unfair in any circumstance, or will they feel compelled to follow suit? There have been instances where courts have deviated. (See Scott M. v. Ilona M. 2011 NY Slip Op 21026). However, what I find even more problematic than the need for judges stay consistent in pendent lite maintenance awards is a judge’s capability to continue using the formula for permanent or rehabilitative maintenance as well. Judges may find it easiest, or ideal to abide by a formula without consideration for other factors. They may feel they are following the law more accurately, or may be frightened to deviate from an award they know will likely be maintained in an appellate court. The biggest fear for a judge is to have their word overturned. Thus if they know legislatures have approved a certain formula they may stick to it for all maintenance cases to come.
I believe it best that judges use the discretion they were elected to use, in order to provide and just and fair maintenance award. We must leave the non-monied spouse of even footing with the monied spouse. Legislatures should be weary of creating formula in a court where there is more emotion, fear, equity and life on the line.