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Spousal Maintenance

For divorce actions that commenced prior to October 12, 2010, a court would use many factors to determine the amount of "temporary" or "interim" maintenance (meaning while a divorce action is pending) and many more statutory factors to determine the amount and duration of maintenance following a judgment of divorce.

For divorce actions that commenced on or after October 12, 2010, a formula approach was added to determine just "temporary" or "interim" maintenance awards. As with child support, the court could deviate from the formula if it determined it would be unjust or inappropriate to apply the formula, provided the court states what the amount of temporary maintenance would be using the formula, and the reasons for the deviation were noted. (Post divorce maintenance was still based upon many and newly added statutory factors.)

A new law was enacted that provides a formula approach for both temporary/interim and post judgment (of divorce) awards of maintenance. The temporary/interim maintenance formulas of the new law became effective October 25, 2015. The post judgment maintenance formulas, and the other parts of this new law became effective on January 23, 2016.

The new law provides two different formula approaches, depending upon whether the spouse paying maintenance is (a) the non-custodial parent who is also paying child support, or is (b) either (i) not paying child support or (ii) is paying child support and is also the custodial parent.

This formula is used with a statutory cap of $175,000 (presently increased to $178,000) of the payor's income. For income above $175,000 (presently $178,000) any additional maintenance the court may award will be discretionary and based upon various statutory factors.

Notwithstanding the formula, if the court determines the formula amount to be "unjust or inappropriate", the court could instead award maintenance based upon certain statutory factors which must be explained in writing by the court.

In an agreement, the parties can "opt out" from using the formula.

For post judgment maintenance, the new law provides guidelines for determining the duration of maintenance. The duration of post divorce maintenance is based upon an advisory schedule as follows: (a) For marriages up to 15 years in length, 15-30% of the duration of the marriage; (b) for marriages more than 15 years but not exceeding 20 years, 30-40% of the duration of the marriage; and (c) for marriages more than 20 years, 35-50% of the duration of the marriage. The court could also award "non-durational" maintenance.

A party may seek to modify a post judgment award of maintenance upon partial or full retirement of the payor if the retirement causes a substantial change in the payor's financial circumstances.

Aside from maintenance, under the new law, "enhanced earning capacity" (arising from a license, degree, celebrity goodwill, or career enhancement) is eliminated as an asset that could be valued and distributed between the parties. However, while eliminating "enhanced earning capacity as an "asset" on the one hand, on the other hand the new law adds another statutory equitable distribution "factor" to the other factors, namely, "the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse." Is this a distinction without a difference? Only time will tell, as the new statute makes its way through the trial courts and up the appellate ladder.