Divorces often bring about financial disagreements, especially when one spouse earns more than the other. The lower earning spouse can fight for maintenance, attorney’s fees and child support. Last week, I gave an overview of different custody options couples are faced with during and after the divorce process. It is important that each party has a good understanding of how each child will be provided for monetarily and how the divorce process will affect his or her income.
In New York, basic child support as well as add-ons (expenses such as medical co-pays, extracurricular activities, private school tuition) are generally paid proportionately to income. There is a formula to figure out how much each parent should pay according to the statute, the Child Support Standards Act. In addition, couples can “opt-out” of the formula by either agreeing to pay more or less than is required depending on other factors in the divorce such as who is getting which assets such as the marital residence. Child support will also depend on which spouse the children live with. Normally the non-custodial parent will pay support to the custodial parent.
Temporary maintenance falls under the category of pendente lite relief, which ensures that the parties’ standard of living is preserved, pending the litigation. Domestic Relations Law Section 236(B)(6) and (8) and Section 240 provide authority for the Court to award either spouse temporary maintenance based upon the parties’ prior standard of living, The pendente lite order should be reasonable regarding the needs of the moving party and the financial ability of the moved upon spouse. This determination should take into account the pre-separation standard of living.
Some factors to be considered in awarding temporary maintenance include the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting and the reduced or lost lifetime earning capacity of the party seeking maintenance. The party seeking maintenance has the burden of proof to show necessity or the inability to maintain him or herself.
Regarding attorney’s fees, if asked for in a pendent lite motion, they are normally awarded to the less moneyed spouse in order to level the playing field. The state aims to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation. After the lower earning spouse files a motion asking for temporary maintenance and attorney’s fees, the other spouse can tell his or her side of the story.
There are situations where the parties’ incomes are such that an award of maintenance and attorney’s fees would actually result in a situation where, after the transfer of funds, the playing field is not leveled but tilted in the other direction. However, this is not likely to happen. In the 2011 case, Scott M. v. Ilona M., the wife did not qualify for legal fees from the husband because after being paid maintenance, she became the moneyed spouse. In that case, Judge Sunshine stated “The Court cannot decide that just because one party ‘earns more’ than the other that they automatically become the ‘moneyed spouse.’ This would be an injustice.”
In a newer case in 2013, Justice Matthew Cooper ruled that the wife would no longer qualify for additional legal fees paid by her husband because it was giving her a disincentive to settle, as she had “no skin in the game” and would continue to litigate as long as her legal fees were being paid. I myself have defeated motions for attorney’s fees, especially where my fee was lower than the spouse’s attorney, the court is not generally going to award a fee that is higher than what the moneyed spouse is paying.
Next week, I’ll be discussing the Maintenance Guideline Bill, passed in the New York Assembly and Senate. It is expected to become law once it is signed by the Governor.
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516