Temporary Maintenance Awards During Divorce.
Divorce actions can take years to resolve. During the course of a long proceeding, a financially dependent spouse, suddenly cut off from the other spouse’s support, may have a hard time making ends meet, even though that spouse should (and will eventually) be awarded support payments from the wealthier spouse. New York law allows a remedy for such situations. Courts may order a wealthy spouse to make payments to a financially dependent spouse until the divorce action is resolved and more permanent payments are determined. Such a payment is called “temporary maintenance,” and is calculated according to a formula set out in New York’s Domestic Relations Law.
Generally, the formula is as follows: 20% of the dependent spouse’s yearly income is subtracted from 30% of the wealthier spouse’s yearly income (up to a statutorily determined cap of $500,000). Then, the dependent spouse’s yearly income is subtracted from 40% of both spouse’s combined yearly income (again, a $500,000 cap is applied to the wealthier spouse’s income). The temporary maintenance award will be the lower of these two numbers.
For example, assume that the wealthier spouse’s income is $100 per year, and the dependent spouse’s income is $50 per year. 20% of the less wealthy spouse’s income ($10) is subtracted from 30% of the wealthier spouse’s income ($30). The result is $20. Then, the less wealthy spouse’s income ($50) is subtracted from 40% of the spouses’ combined income. The spouses’ combined income is $150. 40% of $150 = $60. Subtracting $50 (the less wealthy spouse’s income) from $60 (40% of the spouses’ combined income) leaves $10. The temporary maintenance award will be the lower of these two numbers – $10. This amount is the temporary maintenance payment the wealthier spouse would be ordered to pay the dependent spouse in this situation, until the divorce action is resolved. The court may order different amounts in certain high income cases, or take into account other factors as is it sees fit.
If you are considering initiating a divorce action or are already involved in a divorce action, and would like to speak with an attorney, The Law Firm of Vaughn & Weber, PLLC is here to assist you. Call (516) 858-2620 to speak with a Family Law Attorney today!
*Contributions to the research and preparation of this blog were made by Jason Mays, J.D. (awaiting admission in NYS).
Does landlord have a duty to mitigate damages if tenant breaches lease?
If you are a landlord in New York, you may – or may not – be responsible for mitigating damages that result from a breach of the lease.
Generally, a non-breaching party to a contract has a duty to mitigate damages resulting from another party’s breach of contract. For example, imagine that a construction company enters into a contract to buy building materials from a manufacturer. If the manufacturer breaches the contract by failing to provide the building materials, the construction company will not be able to complete the building, and may not be paid for the project. Under traditional contract rules, the construction company has a duty to attempt to acquire the materials from another manufacturer. The construction company may not sue the manufacturer for all of the money it lost as a consequence of failing to complete the project unless it at least made an effort to replace the materials, by, for example, buying the materials from another manufacturer. Even if successful in replacing the materials, the construction company may sue the manufacturer for any additional costs it took on in search of those replacement materials.
Landlord tenant law sometimes imposes a similar duty upon a landlord in the event that a tenant breaches a lease by, for instance, moving out before the end of the lease term. Many jurisdictions would require a landlord in this position to at least attempt to rent the property to another tenant. If successful, the landlord will have avoided some of the financial losses that would have occurred had the property remained vacant until the end of the lease term. However, in other jurisdictions, no such duty is imposed upon landlords. In those cases, if a tenant breaches a lease by moving out, a landlord may wait until the end of the lease term, and then sue the tenant for the entire amount of rent still outstanding under the lease, without making any attempt to find a replacement tenant.
What kind of jurisdiction is New York? Surprisingly, it is both. Although most courts agree that commercial landlords have no duty to mitigate their damages (that is, they have no duty to find replacement tenants), there is much disagreement – and confusion – between the courts about whether residential landlords have such a duty. For the foreseeable future – that is, until a higher court takes an unambiguous position on this issue – case law in the different counties determines whether the duty applies to any given landlord.
If you are a landlord or tenant, and have any questions about how the law applies to your property or lease, please feel free to call (516) 858-2620 to speak with a Landlord Tenant Attorney.
*Contributions to the research and preparation for this blog were made by Jason Mays, J.D.(awaiting admission in NYS)
Primary Caretaker as a Factor in Child Custody Disputes.
Often, when contemplating a child custody dispute, a parent may expect to be awarded custody of a child simply because that parent has spent more time raising or caring for the child. Depending on the circumstances, however, a court may or may not award custody to such a parent.
The New York Domestic Relations Law – which governs issues such as child custody, divorce, and other family law matters – contains the following language.
In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly.
With this language, the New York Legislature has directed courts to award custody based on what the court believes to be in the best interests of the child. Courts consider all aspects of a child’s living arrangements and relations with parents when making custody decisions. The fact that one parent has acted as the primary caretaker of the child will certainly be taken into account. But a court will not award custody to either parent for this reason alone. This may seem unfair to some parents. But again, the court’s sole concern in custody determinations is the best interest of the child. Courts are not concerned with redressing grievances between parents, or compensating a parent for his or her investment in a child’s well-being.
If you are currently facing a child custody dispute, or are concerned that you may be facing one in the future, The Law Firm of VAUGHN & WEBER, PLLC is here to assist you. We are conveniently located in the heart of Nassau County, Long Island, at 393 Jericho Turnpike, Suite #208, Mineola, NY 11501. Call (516) 858-2620 to speak with a Family Law Attorney today!
*Contributions to the research and preparation of this blog were made by Jason Mays, J.D. (awaiting admission in NYS)
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