The recent updates to the Domestic Relations Law (DRL), which became effective in October 2010, contain a specific formula for making an award of spousal maintenance while a matrimonial action is pending in Court.
The mathematical formula is somewhat more complicated than the formula which is used to calculate child support, but it is intended to create greater uniformity in the method in which an award of temporary maintenance is granted by the court.
There is currently no formula for making a final award of spousal maintenance once a matter is resolved. The court will use the traditional "20 factors approach," which is more subjective.
The court will make an award of maintenance based upon the following factors:
- The income and property of the respective parties including marital property distributed;
- The length of the marriage;
- The age and health of both parties;
- The present and future earning capacity of both parties;
- The need of one party to incur education or training expenses;
- The existence and duration of a pre-marital joint household or a pre-divorce separate household;
- Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
- The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
- Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
- The presence of children of the marriage in the respective homes of the parties;
- 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;
- The inability of one party to obtain meaningful employment due to age or absence from the workforce;
- The need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
- The tax consequences to each party;
- The equitable distribution of marital property;
- Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
- The wasteful dissipation of marital property by either spouse;
- The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
- The loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties;
- Any other factor which the court shall expressly find to be just and proper.