On October 13, 2010, when New York’s no fault law was implemented, the State also created a new complicated formula for determining the amount of temporary spousal maintenance or “pendente lite relief” that is to be paid by the higher income spouse to the lower income spouse while a divorce case is pending.
Five years later, on October 25, 2015, the temporary support formula was revised significantly. There are two variations to the calculation of temporary spousal support depending upon whether there are children of the marriage and which party is the custodial parent.
“Income” available for spousal support is broadly defined to include earnings reported on the most recently filed federal income tax return as well as employment perquisites. A court can impute income to a party if it believes that someone has reduced his or her income by choice, is not forthright about his or her finances or if a party regularly receives gifts and services from friends and/or relatives. A court does have the discretion to vary temporary spousal support from the formula if it finds that the Guideline amount of temporary maintenance is unjust or inappropriate. If so, the court must set forth in a written decision or a decision set forth on the record, the Guideline amount of temporary spousal support, the factors the court considered and the reasons that the court adjusted the Guideline amount. This requirement cannot be waived by the parties or their counsel. We can help you present these factors in the most advantageous way.
A court can award post-divorce maintenance. In determining the amount and duration of post-divorce maintenance, it must consider, among other things, the income and property of the parties, including property awarded in the divorce, the length of the marriage, the presence of children of the marriage in the home, and the ability of the former spouse to become self-supporting and the time and training necessary to do so, as well as the consequences of anticipated retirement of either party in the duration and amount of an award of post-divorce maintenance.
Upon an application by either party, a court may annul or modify any prior order or judgment as to maintenance, upon a showing of the recipient’s inability to be self-supporting or a substantial change in circumstances or termination of child support.
If a party is not receiving support he or she is entitled to receive, the agreement or order can be enforced by filing either a motion or a petition which would require the defaulting party to respond. A Court then could decide spousal support is not owed or what amount is owed, enter a money judgment against the payor or even order the payor to be in contempt of court and place the payor in jail for as long as six months. Courts do not take spousal support obligations lightly. If you need assistance, we can help.