Problems still exist in New York’s temporary maintenance law

It has been over a year since unilateral no-fault divorce was adopted in New York. No-fault divorce, which now exists in all states, permits one spouse to receive a divorce by swearing that the marriage has been irretrievably broken for six months or more.

Ever since the law’s passage, it has had critics and supporters. The law, which includes a small provision about temporary spousal support (also known as alimony and maintenance), is currently being analyzed by the state’s independent Law Revision Commissions:  According to a Wall Street Journal article by Sophia Hollander, there are “troubling aspects” of the strict formula for awarding temporary spousal support. A report is due in April.

Temporary maintenance is awarded when the income of the “less-monied” spouse is less than two thirds the income of the spouse with the higher income. The formula calls for maintenance to be the lesser of a) 30% of the payor’s income minus 20% of the non-payor’s income or b) 40% of the combined income minus the non-payor’s income. Income for calculation of temporary maintenance is to be capped at $500,000, and judges are free to adjust amounts when the income exceeds $500,000.

The law aimed to protect the low-income spouse, but ended up hurting the affluent spouse by shifting income unfairly. At times, it even transformed the richer spouse into the poorer one.

The movement is to make the law less binding on judges and more advisory; however, the fear is that it will lose its effect.

Westchester Assemblywoman Amy Paulin, the primary sponsor of the alimony law, said, “[The 2010 law is] better for women. But we do want to make it fair, and we do want to respect everyone involved.”

However, how is this fair?

In 2010, an investment banker and his wife divorced. The court ruled his income to be $500,000—mostly from bonuses. After the court applied the formula and added household expenses, personal expenses, and child support, he was left with $17,244; after taxes, it became slightly less than $12,000.

In the meantime, the wife, who was educated, was earning $103,000 a year and had a savings of $250,000. How does her situation warrant spousal support, even if temporarily?

After the parties went back to court, the court admitted that errors were made. Even though judges have the right to mitigate such inequalities, any mitigation requires drafting a detailed explanation. According to the article, many judges have called this too time-consuming considering budgetary cuts and increased case loads.

 

“[It is] pure redistribution of wealth brought down to the family level,” said Timothy Tippins, former president of the New York state chapter of the American Academy of Matrimonial Lawyers. “They’ve dropped any pretense of predicating the award on the actual needs or circumstances of the parties.”

Is he right? Is this simply taking from the rich and giving to the poor or slightly less rich?

With Massachusetts recently curbing its lifetime spousal support law, perhaps New York needs to go even further by completely eliminating spousal support or only granting very temporary spousal support for those who are in the lowest economic bracket.

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