Earlier this year New York State legislature passed a maintenance bill which changed matrimonial law in some significant ways. Governor Cuomo signed the bill which became effective on two different dates: the section relating to temporary maintenance become effective October 25, 2015, and all other provisions including post divorce maintenance, become effective January 23, 2016. Recently, Governor Cuomo signed an addendum to the bill that required that all agreements or orders must include two child support calculations; one for when maintenance is paid, and the other for after maintenance terminates. This legislation is helpful to both practitioners and clients as it takes away some of the guesswork and unknowns in matrimonial cases.
The biggest change for attorneys who practice matrimonial law was the inclusion of a calculation for post divorce spousal support and guidelines for the duration of such support. For the first time, if a person is paying maintenance that is deducted from his/her income for child support purposes, and it is added to the other party’s income for child support purposes. Also, parties are sharing the statutory child support add-ons in proportion to their income, including spousal support. Prior to this determination, courts were not always deducting the spousal support before determining child support, nor was the payment of spousal support affecting the sharing of the statutory add ons.
The challenge for both practitioners and clients will be becoming used to the new formula and its application to collaborative cases. Practitioners will need to amend their agreements to reflect the language of the new statute, including detailed opting out language, and specific deviation language.
The new legislation creates both more structure (better parameters) for cases, while still allowing for deviation based upon the actual circumstances of the parties. In collaborative practice, the attorneys can use this structure to guide clients in an interest based discussion about what each persons goals are, but still allow the unique factors of each case to guide the ultimate resolution.