The New Divorce Law – Wait or Do it Now?
Posted 1 year, 5 months ago at 1:11 pm. Add a comment
On August 15, 2010, New York became the 50th State to adopt a No Fault Divorce. But, the changes did not end there. As part of the package there were several major changes to divorce law that can determine whether you should wait for the new laws to take effect or start the divorce now. The No Fault and Temporary Maintenance laws take effect on October 12, 2010 and the new Attorney’s Fees law takes effect on October 12, 2010.
Besides the addition of “No-Fault” as a basis to get divorced, the legislature added a temporary maintenance provision and an attorney’s fees provision.
Under the New Statute while the divorce is ongoing, the spouse who makes more money will have to pay support to the spouse who makes less money. After the divorce there is no guarantee that the spouse with less money will get any maintenance. So, the less monied spouse has an incentive to keep the divorce going as long as possible.
The new temporary maintenance statute bases the payments on a percentage of income. To quote the legislature:
The temporary maintenance guidelines would only result in an award when there is an income gap between the two parties such that the less-monied spouse’s income is less than two thirds of the more monied spouse’s income. For instance, if the payor’s annual income is $90,000 a year, the guidelines will only result in an award if the payee’s annual income is less than $60,000. The numerical guideline is only applied to the payor’s income up to $500,000 of her/his income, with a set of factors to be applied by the court to determine any additional amount of temporary maintenance on the payor’s income above this $500,000 cap. The guidelines also include protections for individuals whose annual income is less than the self-support reserve (135% of the Federal Poverty Guidelines -currently $14,620/year).
The way that these percentages work are as follows:
To determine the guideline amount, the court must compare two calculations of the spouses’ annual incomes. For both of these calculations, any income of the payor’s that exceeds $500,000
is not included.
* 30% of the payor’s income minus 20% of the payee’s income, OR
* 40% of the combined income of the two spouses. The payee’s income is then subtracted from this figure.
The court must select the lesser of these two figures as the guideline amount. If the payor has an annual income exceeding $500,000, the judge may adjust the amount.
The take away is that until October 11, 2010 the judges have discretion as to whether to award temporary maintenance, and if so the amount to award. This statute removes the discretion and provides a right.
The next change involves attorney’s fees. Until October 11, 2010, the court has discretion in whether to award attorney’s fees. The current rule is that the court can award attorney’s fees if it finds that one spouse has more resources and this could effect the ability of the other spouse to litigate the divorce.
The new law creates a presumption that the spouse with more money should pay for the attorney of the spouse with less money. So, under the current law the spouse looking for attorney’s fees bears the burden of proving why s/he needs it. Under the new law, the monied spouse bears the burden of proving why s/he should not have to pay.
This law was championed by women’s rights groups who were concerned that women were being litigated into the ground by their rich husbands. But, in the last few months I have gotten an increasing number of telephone calls from professional women who earn more than their husbands. These women are now at risk for paying their husband’s attorney’s fees.
On the face of it, these two new laws are a boon for the stay at home spouse, or the spouse who makes considerably less money. However, it can be used as a sword. If a spouse is getting temporary maintenance and his/her attorney’s bill is being covered, then there is no incentive to resolve the case quickly.
If you are the spouse who earns more money, then you should start the divorce now to avoid these two new laws. If you are the spouse who makes less money, your goal is to wait for the new laws to take effect.
