Why are the New York maintenance (alimony) and child support guidelines of the State of New York a divorce mediator’s best friend?
The New York State legislature created the maintenance and child support guidelines in order to make the amounts of support more uniform throughout New York State. This is a very good thing for a divorcing couple, their children, and society.
Many of my divorce lawyer colleagues are critical of these support guidelines. At a cocktail party they might tell me that such guidelines result in simple minded calculations that are unjust or unfair to one or both parties. The real reason they are so critical is that the guidelines help reduce divorce litigation and attorneys’ fees.
Another very good thing about the support guidelines is that in order to make a binding maintenance and child support agreement in New York, the guidelines calculations must be set forth in the agreement. Then the parties agree to either follow the guidelines calculations, or deviate from them, and if so, state the reasons for such deviation. This makes the divorcing couple think twice about agreeing to such a deviation.
My goal as a New York divorce mediator or collaborative divorce lawyer is to help the divorcing couple make a fair and equitable settlement, in which their reasonable needs and those of their children are satisfied.
In my experience the support guidelines are a good starting point in negotiating support. The guidelines nudge the couple towards a fair and equitable settlement with respect to maintenance and child support.
So, when one of my divorce lawyer colleagues at the cocktail party attacks the guidelines for generating an unfair result, all I tell them is that if that is truly the case, then make a settlement that deviates from the guidelines and state the reasons why. It is well settled law in New York that – if the facts and circumstances in a case are such that application of the support guidelines would be unjust or inappropriate – then the Court has the power to deviate from such calculations, and the divorcing couple has the power to make an agreement to so deviate from the calculations.
In the context of a divorce mediation, sometimes it is apparent when gathering the relevant financial information that the couple is living way above their means. If this is the case, the support guidelines calculations may be such that when the parties’ income and current living expenses are considered, one or both spouses may end up running in the red. If such is the case, it may be necessary for them to sell the marital home and downsize, so that they can pay their expenses when their income and the support provisions are considered.
Another reason the New York support guidelines may not work for the divorcing couple is if one or both spouses has non-recurrent income. For instance, let’s say the husband received a relocation bonus from his company that was reported on his previous year’s tax return. Since that is a one-time bonus, which he is very unlikely to receive again in the foreseeable future, that relocation bonus income should be excluded when applying the support guidelines.
Another reason to deviate from the strict application of the guidelines would be if one or both spouses has a substantial variable bonus. For instance, I once had a case where the husband’s base salary was $600,000, and his variable bonus would range from $200,000 up to $3 million dollars. The best way to resolve that issue would be to apply the support guidelines to the husband’s base salary, and then have him pay supplemental maintenance and/or supplemental child support based on a percentage of his variable bonus if, as and when he receives it in the future.
However, deviation is the exception to the rule. The New York maintenance and child support guidelines help to get divorce cases settled.
© 2018 Arnold D. Cribari
