Calculating Divorce Maintenance
In New York, determining maintenance (spousal support or alimony) can be a burdensome task. This task can become more complicated in situations where one spouse is receiving disability or a long term/permanent personal injury settlement in the form of a tax free annuity. Although the line between separate property and marital property with regard to such payments is often blurred, the fact of the matter is that these payments can have an effect on child support and even maintenance. Disability or annuity income can be factored in for the purposes of calculating how much maintenance a spouse should be paying to the injured party.
More importantly, the disability or annuity income should be used by the disabled spouse for the purpose of taking care of the children. This money should not be discounted when determining who pays carrying costs. It absolutely should be used to contribute to the support of the children.
Divorce Attorneys
If you are contemplating a divorce in which one of the spouses is receiving some type of disability or personal injury settlement payment, call (516) 858-2620 to speak to a divorce attorney today!
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).
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