In most, but not all, divorces, one spouse is the primary breadwinner and earns most of the family income, and the other spouse is the primary care-giver of the children.
Assuming the spouse focusing on the children is doing a good job, that spouse has the right to receive substantial maintenance and child support when a New York divorce court applies the support guidelines formulas.
What can the New York divorce lawyer do for the primary breadwinner client?
1. Consider an out of court divorce settlement process such as divorce mediation or collaborative divorce if the facts warrant the use of such a settlement process. Such settlement processes are almost always substantially more economical than litigation and a trial, and are better for tailoring a settlement consistent with needs and interests.
2. If a substantial part of the primary breadwinner’s income is in the form of a variable annual bonus, then structure the support obligations as follows:
a. calculate the maintenance and child support based on the primary breadwinner’s salary; and
b. recommend that the primary breadwinner pay a percentage, not a fixed sum, of the variable annual bonus as supplemental maintenance. The specific percentage depends on the facts of the case.
3. Justify applying the statutory income caps for determining maintenance ($178,000 statutory income cap) and child support ($143,000 statutory income cap);
4. Make best efforts to get the divorce case formally settled by December 31, 2018 (typically by Separation Agreement or Stipulation of Settlement) so that any maintenance and supplemental maintenance is fully deductible on the primary breadwinner’s tax returns. Maintenance is not tax deductible for divorce cases settled after December 31, 2018.
5. If you are unable to formally settle your divorce case by December 31, 2018, then advocate for a downward deviation from the Maintenance Guidelines calculation. This would include stating that when the Maintenance Guidelines Statute was enacted, the NY State Legislature intended that maintenance be deducted from the payor-spouse’s income for income tax purposes.
6. If the case involves a relatively long marriage with children, consider a 50-50 distribution of all marital assets.
7. Use a divorce lawyer who is honest and ethical, as well as competent, and who will make best efforts to help you obtain a fair resolution that does not cost you an arm and a leg financially.
8. Don’t fight for primary physical custody if you have a very demanding and time consuming career and your spouse (the primary child care-giver) is a relatively fit parent who is doing a relatively good job with the kids.
9. Do your best to be organized, rational, realistic and cooperative with your divorce lawyer.
10. Try not to be vindictive with your spouse, be forward-thinking, and remember: what is past is past.
11. Do something that is fun and not too expensive to help keep your spirits up during the divorce process. I’ll never forget a client I had many years ago who started her divorce full of rage because her husband had infected her with herpes. Then, she took up kick boxing that a friend of hers recommended. After that, she made very intelligent decisions that resulted in a good divorce settlement consistent with her needs and interests.
© Arnold D. Cribari 2018
