City and State Attorneys Want Spousal Support Laws to Change

The New York State Law Revision Committee has until the end of the year to report on recommendations about a year-old, formula-based spousal maintenance law. The New York City Bar Association wants the committee to widen the use of the formula to include Family Court divorce cases.

The mathematical calculation was enacted one year ago with the passage of a group of marriage-related legislation, including the introduction of no-fault divorce.

The spousal support formula, used exclusively in state Supreme Court, applies only to temporary spousal maintenance. The mathematical formula switched the judicial base of spousal support from the needs of a recipient spouse to the income of the spouse required to pay.

The New York lawyers' group wants the formula used in family court to help clients less able to show a need for temporary spousal support. The attorneys contend that divorcing low or no-income spouses frequently go without deserved spousal support because of the legal expense required.

Permanent spousal support is excluded from present state laws using the income formula. Judges determine permanent maintenance on a case-by-case basis, using individual information about a support-seeking spouse's financial situation.

The New York City Bar Association also suggests changing "enhanced earning capacity" rules that apply to permanent spousal support. Courts currently equate a spouse's licenses, certifications and degrees as financial assets.

The attorneys' organization believes the present "enhanced earning capacity" or EEC laws are based on future earnings assumptions and penalize a spouse who pays support. The group says courts wrongly combine assets and income to figure permanent support by using the EEC rules.

The New York State Bar Association last year recommended that the EEC-based awards be abolished in temporary support cases. The state organization suggested that EEC rules for permanent support should be limited to couples with yearly income under $130,000.

The permanent maintenance EEC formula currently applies to all divorcing spouses with combined marital incomes up to $500,000.

Source: Thomson Reuters, "NYC bar association recommends changes to spousal support," Nov. 3, 2011