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On the issue of spousal maintenance, in October of 2010, the Legislature provided a formula to calculate the presumptively correct amount of temporary spousal maintenance. The stated purpose of the new temporary spousal maintenance statute is to achieve some consistency and predictability in calculating the awards.

§ 236(B)(5-a)(c) provides the formula to calculate the presumptively correct award amount, which as applied to the parties’ admitted income levels is as follows.

Step 1 Combined Income =

Payor‘s Income less FICA of $____________ = $_________
Payee’s Income less FICA of $____________ = $_________

Step 2

Calculation #1: Calculation #1 =

[*2]30% of Payor’s Income = $_______
20% of Payee’s Income= $_______

Calculation #2: Calculation #2 =

Combined Income = $_________
Multiplied by 40% = $_________
Minus Payee Income $_________

DRL §236(B)(5-a)(d) provides that “the guideline amount of temporary maintenance shall be the lower” of two calculations.

Section 236(B)(5-a)(e)(1) provides that “[t]he court shall order the presumptive award of temporary maintenance in accordance with paragraphs c and d of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance accordingly based upon consideration of the following factors.

(a) the parties’ standard of living during the marriage;

(b) the parties’ age and health;

(c) the parties’ earning capacity;

(d) the need of one party to incur education or training expenses;

(e) wasteful dissipation of marital property;

(f) transfers or encumbrances made in contemplation of a matrimonial proceeding without fair consideration;

(g) the existence and duration of a pre-marital joint household or a pre-divorce separate household;

(h) acts by one party against another than have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment;

(i) the availability and cost of medical insurance for the parties;

(j) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;

(k) the inability of one party to obtain meaningful employment [*3]due to age or absence from the workforce;

(l) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;

(m) the tax consequences to each party;

(n) marital property subject to distribution;

(o) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;

(p) contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

(q) any factor the court shall expressly find to be just and proper.

ATTORNEY ADVERTISING: Information herein and is not intended to be, legal advice. This sample legal document is provided as part of a free educational service by Zachary Irtaza Riyaz, Esq., attorney at law in the State of New York, for reference only. Statutes and codes such as Domestic Relations Law (DRL)are frequently amended and may affect the validity of the above legal document and no representation is made that the above sample is going to be enforceable in the future. Updated statutes and codes may be available at the New York State Legislature Website. No statute or sample legal document should be relied on without understanding controlling case law which may further interpret it. AN ATTORNEY SHOULD BE CONSULTED FOR LEGAL ADVICE.