Temporary Maintenance Statute in Practice

The Temporary Maintenance Statute, codified in Domestic Relations Law Section 236B (5-a), changed the landscape for calculating interim maintenance (support for the less-monied spouse during the pendency of divorce proceeding) for all actions commenced on or after Oct. 12, 2010. Prior to its enactment, courts determined interim maintenance on a case-by-case basis with an eye toward “tiding over the needy spouse” considering the family’s standard of living during the marriage. Now, in an effort to create “consistency and predictability,” shift resources pre-trial by automatic calculation, and to make it easier for pro se litigants, courts are required to follow a number of steps when determining interim maintenance:

1. First, the court determines each spouse’s income using the same definition as in the Child Support Standards Act (CSSA): gross income less FICA and New York City taxes. The spouse with the higher income is the “payor” spouse, and the spouse with the lower income the “payee” spouse.

2. The court then performs two different calculations using the parties’ incomes, capping the payor’s income at $500,000 for both calculations, and the two figures are compared.

3. The payee is entitled to the lower of the two calculated figures unless the court finds that “it would be unjust or inappropriate” based on 17 factors.

4. If the payor’s income is above $500,000, the court must decide whether additional maintenance is appropriate by considering 19 factors.

5. Finally, if the resulting guideline amount would reduce the payor’s income below the self-support reserve ($14,620 a year in 2010), then the award is equal to the payor’s income minus the self-support reserve.

Although the statute is verbose (1,915 words to be precise), it creates more questions than it provides answers. For example, it does not specify whether the payee’s expenses should be paid by the payee out of the maintenance award or paid by the payor in addition to the award; whether temporary maintenance is taxable to the payee and deductible by the payor; or how temporary maintenance interacts with temporary child support. Further ambiguity arises from the factors courts must analyze in determining whether the presumptive award is “unjust or inappropriate,” or whether additional maintenance is appropriate when the payor’s income exceeds the $500,000 cap.