For New York divorce cases commenced since January 23, 2016, a maintenance (alimony) guidelines formula will usually be applied to determine the amount and duration of maintenance. Schedule a consultation with me and I can calculate the amount and duration of maintenance following your divorce by applying a formula in this new statute to the facts of your case.
This new law, now only 20 months old, is embryonic. To date, there has not been enough time for high income divorce cases with maintenance issues to go to trial, and for aggrieved litigants to file appeals and for such appeals to be decided by appellate courts. There are no New York appellate court decisions interpreting this new statute at this time. As one of my attorney colleagues recently told me, divorce court is like the Wild West when he makes arguments in high income maintenance cases.
What happens when a spouse earns income that exceeds the current $178,000 statutory income cap? The statute says that the NY maintenance guidelines formula should only be applied to income up to $178,000, but gives the Judge discretion to apply general “statutory factors” (like marital standard of living, the present and future earning capacity of the parties, and tax consequences), not the guidelines formula, in deciding whether, and to what extent, to award maintenance based on income exceeding $178,000.
Guns are blazing in the Wild West when lawyers and judges say things, with conviction, that fly in the face of the explicit language of the statute.
I recently attended a lecture by a very intelligent and highly esteemed Judge who shared his personal belief that maintenance and child support statutory income caps are low, and that if he was going to deviate from such guidelines formulas in determining maintenance and child support, which he has the power to do, he would tend to deviate upward and award more support for a longer period of time than the statute provides. He acknowledged that his view may not be consistent with future appellate rulings.
Court Attorney Referees (in Westchester County) and Judges at preliminary divorce court appearances may ignore the statutory income cap and apply the guidelines formula to income exceeding $178,000, even though the statute says not to do so. I recently locked horns with a divorce lawyer who swore that courts are disregarding the statutory income cap and awarding maintenance on all income. I believe she was telling the truth to the extent that what she was advocating was her truth consistent with her experience in court.
In the next year or two, it is likely that New York appellate courts will render decisions that will shed much light on how, to what extent, and under what circumstances, post-divorce maintenance will be awarded based on income exceeding $178,000. However, until then, it’s the Wild West.
