ALBANY, N.Y., Nov 3 (Reuters) - The New York City Bar
Association on Thursday recommended that a recently-enacted
formula to calculate temporary spousal maintenance -- the
amount of money one spouse pays another during a divorce
proceeding -- be applied more broadly in the New York state
courts, a move the association said would benefit low-income
Under a year-old law, state Supreme Court judges use a
mathematical formula based on the spouses' income to calculate
temporary maintenance, which is granted to financially-strapped
spouses pending the outcome of court proceedings. In the past,
the statute based temporary maintenance on the needs of the
spouse with the lower income.
The bar association's report recommends that the new
maintenance formula, which currently only applies in Supreme
Court, also be used in Family Court, which is authorized to
award "spousal support" to estranged spouses who have not
divorced. Since litigants in Family Court tend to be low-income
and pro se, according to the report, they cannot demonstrate to
a judge the need for support.
"As a result of this ambiguous statutory guidance, many
Family Court litigants do not obtain spousal support since they
cannot afford counsel who can demonstrate that spousal support
is warranted," the report says.
The new formula does not apply to permanent maintenance,
which courts typically grant near the end of divorce
proceedings. The level of permanent maintenance is left to the
judge's discretion, and is based on a spouse's cost of living
as well as medical, educational and other expenses.
The association's recommendations were submitted to the
state Law Revision Commission, which has been tasked by
lawmakers with reviewing the 2010 law that created the new
The formula was passed as part of a package of bills aimed
at overhauling the way divorce proceedings are treated by
courts. These included the creation of no-fault divorce and a
law that enables the less-monied spouse to collect attorneys'
fees in most cases.
In addition to recommending that the guidelines for
temporary maintenance in matrimonial cases also apply to
support awards in family court, the bar association wants the
commission to conduct a thorough review of the practice of
classifying degrees, licenses and certifications -- known
collectively as "enhanced earning capacity" or EEC -- as a
financial asset for the purposes of calculating permanent
Critics of the practice, including the association, contend
that the use of EEC in maintenance calculations is unfair
because it treats future earnings as both income and assets,
allowing courts to "double-dip" when deciding maintenance
levels. They also argue that calculating the ability to earn is
more art than science.
Calculating EEC "requires assumptions on assumptions. As we
have seen in recent years of economic upheaval, these
assumptions often do not pan out," the report reads.
'PEOPLE WANT CONSISTENCY'
Rose Mary Bailly, the head of the Law Revision Commission,
declined to comment on the report, but did indicate the
commission was looking at all of the bar association's
"People want both consistency in maintenance awards among
similarly-situated parties, and predictability so attorneys can
point to past decisions as a path (for current clients),"
A number of local bar associations and non-profit groups --
mainly those that advocate for victims of domestic violence --
have sent their own recommendations to the Review Commission
over the last year. In Nov. 2010, the New York State Bar
Association suggested the legislature abolish the use of
enhanced earning capacity in calculating maintenance awards and
do away with the formula for temporary awards, allowing courts
to make awards on a case-by-case basis.
The state bar assocation also proposed that the formula for
permanent maintenance apply only to couples with a combined
annual income below $130,000, since wealthier couples tend to
have more complicated financial issues. The current formula
applies to the first $500,000 of income for any divorcing
The Law Revision Commission is set to release its report to
the legislature by Dec. 31.
(Reporting by Dan Wiessner)
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(A previous version of this story did not distinguish
between the New York City and State bar associations. The
$130,000 proposal came from the state bar association.)