Major Changes to New York’s Maintenance Law in the Mediation Context – Part 3

{Major Changes to New York’s Maintenance Law in the Mediation Context - Part 3 By Sandy Balick3:36 minutes to read} This is the third installment on the recently passed amendments to New York’s maintenance (alimony) law, addressing some of its implications for couples in mediation.

The prior installment introduced the new formulas for calculating post-divorce maintenance. One applied where child support will be paid and the other for situations where this is not relevant. These formulas will be helpful in providing some objective notion of the role maintenance may play in negotiations over the disposition of assets and liabilities, etc.

Two cautionary notes are important:

  1. Although the maintenance obligation is designed for easy online calculation, it’s still wise to review this law and its implications for your specific situation with your personal lawyer.

  2. While the new scheme calls for the court to order payment of the Guideline amounts resulting from application of the formulas, this is not necessarily the end of the story. A party may assert the formula result is unjust and inappropriate in the particular circumstances. Thus the law furnishes 15 criteria by which the court might vary the award at the petition of a party. These common sense criteria embody important considerations from prior law, such as the “standard of living of the parties established during the marriage,” other needs-based considerations, as well as the catch-all ”(a)ny other factor which the court shall expressly find to be just and proper.” These considerations may serve as convenient guides to couples negotiating voluntary resolution of the property issues in mediation.

The amended law also brings important guidance to the task of determining the appropriate length (duration) of the maintenance award, which is calculated initially as an annual figure but is payable in intervals to be determined by the court, frequently monthly (1/12 installments). The amended law provides the court with an “Advisory Schedule” (i.e., non-mandatory) table for calculating the duration of a maintenance award as a function of the length of the marriage in question.

For instance, in the case of a 10-year marriage, the advisory duration is between 15% and 30% of the length of the marriage, or between 1 1/2 to 3 years. A marriage of more than 20 years may merit an award of anywhere from 35% to 50% of its length. What to some parties may be the Holy Grail of maintenance, a non-durational (lifetime) award remains possible in “the appropriate case.” No specific guidance is provided as to what might be an “appropriate” case.

While the court is not bound by the durational table, it must consider and specify its reasons for any variation. The very same 15 statutory factors used to adjust a Guideline award of maintenance, as discussed above, must be used for any variation determination. In addition, the actual retirement of the maintenance Payor (full or partial) may serve as a basis for a downward modification of the ultimate award.

Again, these considerations are chiefly noted as potentially helpful guides to mediating couples struggling to achieve a fair and equitable result suitable to their own circumstances, because the amendments reiterate that parties remain free to enter their own agreements even if these “deviate from the post-divorce maintenance guideline obligation.”

Sanford (Sandy) Balick, Attorney & Mediator, NY Sandy Balick signature
Sanford E. Balick, Esq.
Founder & Principal Mediator
Consensus Point Mediation, LLC.

Phone: (646) 340-3434
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