An earlier version of the new maintenance law that did not survive legislative committee also provided a formula for permanent maintenance. Permanent maintenance is the term used to describe maintenance set forth in the judgment of divorce that continues into the future after the parties are divorced, regardless of whether it terminates after a period or years or is truly permanent and expires only on the death (or remarriage) of the payor or payee. That proposed but unpassed statute also charted set time periods for each permanent maintenance award based on the length of the marriage (called “post marital income”). These (proposed) time periods went way beyond the duration of maintenance awards that have typically been granted by courts under existing law. Fortunately (or unfortunately) there is no duration of permanent maintenance prescribed under the legislation that the Governor recently signed into law, so courts will remain free to exercise discretion in setting the length of time that permanent maintenance must be paid.
The courts will also be free to set the amount of permanent maintenance under the new law without reference to a formula, since (oddly) the formula approach only applies to awards of temporary maintenance. With one exception, the portion of the original statute that deals with setting permanent maintenance has not been modified. In fact, it is the same portion of the statute that, in the past, has been used to set both temporary and permanent maintenance awards (with the words “temporary maintenance” taken out). In other words, when it comes to permanent maintenance, the court will continue to issue awards based largely on three main factors: The demonstrated financial need of the dependent spouse, the standard of living of the parties established during the marriage, and the monied spouse’s ability to pay.
There is, however, one notable modification of the statute that may effect the way that courts grant permanent maintenance. Added to the host of factors that the court is directed to consider (beyond lifestyle and ability to pay) in setting the amount and duration of permanent maintenance, are numerous new factors that may actually serve to increase the amount and lengthen the duration of permanent maintenance awards. These include “the existence and duration of a pre-marital joint household or a pre-divorce separate household.” Presumably, employing this factor, counsel could argue that a dependent spouse in a monogamous relationship spanning many (say, 25) years, only the last five of which were married, should be entitled to a longer and larger permanent maintenance award than a woman married (and together with) her spouse a mere five years. Other new factors that may serve to enhance maintenance include “acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity…[including] acts of domestic violence,” and “care of children, or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited … a party’s earning capacity.” Other factors that may serve to enhance maintenance include “inability to obtain meaningful employment due to age or absence from the workforce,” and “the need to pay for exceptional additional expenses for the child/children, including but not limited to schooling, day care and medical treatment.” Finally, the legislature added “the availability and cost of medical insurance for the parties” as a factor to be considered in setting permanent maintenance. Of course, the exorbitant cost of medical insurance has long worked its way into permanent maintenance awards, since this is clearly a component cost of the dependent spouse’s “reasonable needs” under the prior law. Spelling this out as an individual factor helps to underscore the importance of the cost of insurance to the dependent spouse.
One final observation — the additional factors added to the permanent maintenance section of the statute are also the factors added to the temporary maintenance section. As described above, in the temporary maintenance section these factors perform a different function, since they are only employed when a formula-based (and presumptively correct) temporary maintenance award would be unjust or inappropriate. In short, in the context of a temporary maintenance award, the factors are “plan B.” However, because the new factors are, if employed, likely to increase the amount of temporary maintenance, the possibility exists that courts will deviate upward from a presumptively correct formula-based temporary maintenance award. This would represent a huge departure from the typical application of the Child Support Standards Act, on which the new temporary maintenance provision was modeled, since virtually all cases in which there have been deviations from the CSSA percentage-of-income support calculation, have been downward deviations. Of course, we can only speculate what the courts will do, since the statute is so new.
An additional amendment to the Domestic Relations Law will make it easier for less-monied spouses to get their attorney’s fees paid in a divorce. The statute dealing with attorney’s fees will now provide for a “rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” A fee award will not be automatic, but should be easier to obtain than in the past, where often an attorney representing a dependent spouse had to await the final judgment for an order directing payment of fees. In addition to the rebuttable presumption, the amendment to the statute directs that fees be paid quickly, at the outset of the case: “where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding.”