Custody Litigation

How Is Child Support And Spousal Maintenance Calculated In Any Divorce Case In New York?

It is important to note that spousal support is only applicable in certain cases. New York State has a calculator on the public domain at ww2.nycourts.gov that calculates maintenance for New York divorces. The calculator has not been changed since the elimination of the tax deductibility of alimony in 2019 (on Federal taxes). It is, therefore, somewhat confusing when you go to the website and plug-in the numbers because you will get the same results today as you would have three or more years ago when spousal maintenance (alimony) was a tax deduction.

In regard to calculating spousal maintenance, the tax impacting the payment of spousal maintenance is not taken into consideration by a judge or the formulas that are published by the New York State government. If spousal maintenance is applicable, the amount paid is deducted from the child support payer’s income, if child support is applicable. The longer that you are married, the longer you will be required to pay or receive maintenance. If child support is applicable, there will be slightly less child support paid during the time that maintenance is paid. Once the maintenance ends, if child support continues, the child support will bump up a bit. In New York, child support is payable until 21 although custody ends at age 18, which is kind of strange, but that has been the law forever.

What Additional Factors Could Be Considered Income When It Comes To Child Support And Spousal Support In High Asset And High Net Worth Divorce Cases?

All sources of income can be viewed by a judge in high asset and high net worth divorce cases. Recently, I had a case that involved a very large educational trust fund set up by the husband’s parents to which the wife had no access. In that case, the judge attributed income to the husband because he had the ability to draw money out of that trust fund and was underemployed. He was earning about $90,000 a year, yet leading a $300,000 a year lifestyle. We ended up settling the case, but only after the judge said that she was going to attribute the availability to draw money from the trust fund as imputed income to him.

The law in New York is simple. Everything that is acquired during the marriage is considered to be part of the marital estate, therefor marital, therefore, subject to equitable distribution. Some of the things that are not considered marital include inheritances – as long as the money that is inherited is kept in your own name and not put into a joint account – things you brought into the marriage before you were married, awards from personal injury lawsuits and gifts from third parties. Trusts could also be considered separate. Or, if parents give a child $30,000 a year for their birthday, that is potentially considered income even though it’s not a reportable event to the government.

However, if there is income coming in from any source, such as parents letting a child stay in their house for free, a judge could easily impute $2,000 a month as imputed rent. In my 36 years of giving advice, I know that if I stay with these words, “The best interest of the children,” I will always be right. That is exactly what every judge, on every bench, in every New York Court that concerns itself with families is going to say. If it’s in the best interest of the children, then that is the decision that is made. It’s a very simple rule to follow. And if people do not think of that first before spending their children’s college educational funds in a litigation that could have been settled for $10,000 combined, then shame on them.

Will The Working Spouse Be Required To Provide The Same Lifestyle To The Stay-At-Home Parent In A Divorce That He Or She Got Accustomed To During The Marriage?

In a fantasy land, the working spouse would be able to provide the same lifestyle to the stay-at-home parent in a divorce that he or she got accustomed to during their marriage. But, the pure economics of the expenses of life does not allow it. There are statistics that show that the majority of Suffolk County have a difficult time living in one household based upon the combined income of the husband and wife. If that kind of household is going to break up, and one of you has to move out, even if you are living in a family member’s home, the expenses still increase. Food alone is one simple example. When you shop for a family of four, it doesn’t cost you three-quarters of the expense to shop for a family of three.

For instance, when a spouse leaves the marital residence and that spouse sets up a new home, everything has to be duplicated. You need an extra bottle of ketchup, and a quart of milk. Those numbers don’t sound daunting, but that is just one example. Additionally, most people do not have a relative’s home to move into. And so, they have to establish a new household, which means buying furniture, paying rent, utilities, commutation expenses, insurance, and food. So, where does the money come from? If the income of the couple has not changed, and the only change is the divorce, how could they possibly expect to live the same lifestyle? They can’t. One of them or both have to figure out what has to be done in order to do to survive and make it work in the best interest of the children. That may mean getting an extra job, trimming your expenses, selling the house and downsizing, or moving away from Long Island.

In the era of COVID-19, families living in Long Island no longer have the viable option of commuting into Manhattan, which is where the money is, because the necessity to get on the Long Island Rail Road is not feasible, at least for now. So many large companies are no longer requiring presence in the office. The pandemic has caused great angst between couples, and the divorce rate is rising. Many couples are opting to stay in the same house because of the economics. It is difficult. But is it in the best interest of the children? Well, children living with dysfunctional parents is not the greatest thing, but not eating is worse.

Smart couples today might consider going to mediation to have an evaluation of their marital estate done to see whether they can afford to be divorced in separate households. If their jobs allow it, and they can telecommute or work virtually, they could consider moving to North Carolina or Florida. That is a big win, and something that has never before been available to Long Island couples.

For more information on Divorce In New York, a complimentary 30-minute zoom consultation is your next best step. Get the information and legal answers you are seeking by calling (631) 462-3100 today.