New York will most likely have new legislation regarding maintenance fees in the coming weeks. Governor Andrew Cuomo is expected to sign this piece of legislation that was recently passed by both houses. Last week, in my discussion of maintenance and other fees, I explained the process of determining maintenance awards, child support and attorneys fees. The new legislation would change the law regarding the value of professional licenses during this process.
First, the bill would eliminate enhanced earning capacity as a marital asset. In the past, a party to a matrimonial action might have their enhanced earning capacity evaluated from a license obtained during the marriage. This would commonly include professional licenses, such as a law or medical license. Assuming the legislation is signed and becomes law, the courts would no longer be required to determine the lifetime value of a license or professional degree earned during the marriage. This is sure to be a relief to those who got married while in professional school.
As the license would no longer be counted as an asset, it may instead be used as a factor in maintenance awards. The new bill would preserve the temporary maintenance guidelines, but would address the problems associated with the 2010 law. This formula created some radical shifts of money from one spouse to the other without regard to actual needs and fairness. Many judges have used their discretion to deviate from the formula in an effort to create a more equitable award. Unlike the current approach, the proposed law takes into account whether child support is being paid prior to calculating maintenance.
The new law will continue to give judges discretion on the amount of temporary maintenance awarded. However, when considering maintenance for the period following the divorce, there are several new factors that the courts will consider. These include termination of child support and income on assets awarded in equitable distribution. The law also gives suggested ranges for how long maintenance should last depending on how long the marriage was.
The law would go into effect 120 days after the governor signs it, so if you are already involved in a divorce action the old law will apply. The provisions of the proposed new law regarding temporary maintenance will go into effect 30 days after it is signed.