Frequently
Asked Questions
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What are post-marital income awards?
Post-marital income awards are a fairer version
of what is now, in New York State, called maintenance.
Like maintenance, post-marital income is a periodic
payment made by one former spouse to another. Alimony
and spousal support are other names that are used
for these kinds of payments. 
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How
will post-marital income guidelines work?
Post-marital income claims will be made very much
the way claims for child support are made. A formula
will be used to arrive at a presumed amount. A
second formula will be used to determine how long
this amount will be paid. Judges can vary the formula
results when the amounts seem unfair for specific
cases.
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How
much will post-marital awards be?
The amount will depend on the incomes of the divorcing
husband and wife. In practice, their post-award
incomes will range from a 30% - 70% split of combined
income (when one spouse has no pre-award income)
to a 40% - 60% split of combined income (when pre-award
incomes are closer to equal).
Divorcing parties can present reasons for deviating
from the guidelines.
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What about tax
consequences?
Post-marital income payments will be tax deductible
to the payor and taxable to the payee.
As a result, the after-tax income for spouses making
payments under the post-marital income guidelines
will actually be higher than the 60% - 70% of combined
income and lower than the 30% - 40% of combined
income for spouses receiving payments.
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How long
will the post-marital income payments last?
The longer the marriage, the longer the payments
will last. For example, for short marriages, the
guidelines call for payments to last only one-third
of the length of the marriage. For marriages that
have lasted for over 20 years, the guidelines call
for payments to be permanent.
Again, these are only guidelines. Judges can vary
the required time period for payments when they
are convinced that the equities of the case require
it.
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Exactly what
happens when a judge thinks that the post-income
amounts or time periods seem unfair?
If the guideline award seems unfair, a judge can
look to factors listed in the law for guidance.
These factors include such things as the age and
health of the parties.
When judges decide to vary the post-income amount
or time period determined under the guidelines,
they will need to write decisions explaining their
reasons.
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Will all divorcing
couples use the post-marital income guidelines?
No. Couples with combined incomes over $ 1,000,000
will have their cases resolved differently. This
is because the assets of their marriages are likely
to include much more than the future ability of
the former spouses to earn income, including significant
property that will subject to equitable distribution.
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Why does New
York need post-marital income guidelines?
First, under existing law, it is so difficult to
make a claim for maintenance that the majority
of lower-earning spouses from low and middle income
families, who can’t afford expensive litigation,
simply give up legitimate claims for maintenance.
Second, divorcing New Yorkers deserve financial
settlements that fully recognize marriage as an
economic partnership.
Third, the guidelines will make the outcomes for
couples who divorce in New York more consistent
and more predictable.
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Why are consistency
and predictability important goals for our
divorce laws?
Consistency and predictability promote fairness
by making sure that people with similar cases will
be treated similarly.
Also, consistency and predictability allow parties
to plan, even before their divorces end in litigation.
Knowing what a judge is likely to decide if they
cannot agree helps litigants settle cases, saving
parties the expenses and emotional burdens of litigation
and protecting the financial resources of families
for their post-divorce years. And settlements conserve
the resources of the court system.
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How would
this law benefit low and middle income spouses?
The guidelines approach helps people who can’t
afford to pay for lengthy and expensive divorces.
Now, if someone wants a court to award maintenance,
proof of a number of fairly complicated issues
is required. With post-martial income guidelines,
the proof is simple. Claims can be made even in
uncontested divorces.
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What’s
wrong with the current concept of maintenance?
Maintenance in New York law is based on two false
assumptions.
First, when legislators passed New York’s
current divorce law, they thought that the equitable
distribution sections of the law would provide
significant financial settlements. But equitable
distribution is about dividing existing assets,
and most couples divorcing in New York State have
few assets to divide. They may have a small amount
of equity in a home or a bit of money in a pension
plan, but mostly they have marital debt. Even people
with long marriages are likely to walk away from
the equitable distribution of their property with
very little.
Second, current New York law assumes that all a
spouse needs after a marriage -- even a long marriage
in which one spouse has spent years out of the
workforce raising children, administering a household,
and doing unpaid domestic labor -- is a brief period
of “rehabilitative”
maintenance. Experience, backed by economic research,
has proved this is just not true. Even a brief
period out of the labor market has negative economic
repercussions for the rest of a worker’s
years. For older individuals who have spent years
without paid employment the prospects are particularly
bleak.
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Why would post-marital
income awards work better?
Post-marital income awards are based on the ability
to earn money in the future. This is the most important
asset of the vast majority of divorcing couples.
In most marriages, particularly those with children,
couples divide the labor. One spouse in the partnership,
usually the husband, takes the major responsibility
for work in the paid labor market. The other spouse,
usually the wife, takes responsibility for the
unpaid work of running a household and caring for
children. Even when women work full-time for pay,
they tend to take jobs that will accommodate family
responsibilities and forsake advancement opportunities
that might make them less accessible to their children.
Often they work part-time, spend years out of the
workforce or give up paid labor altogether.
As long as the marriage lasts, both spouses benefit
from this partnership arrangement. If the marriage
ends, however, the spouse who has been able to
work full tilt in the paid labor market continues
to reap the financial benefits of higher income
made possible by someone else taking care of things
at home. The care taker is often left stranded
without economic resources.
With post-marital income awards, both spouses will
continue to share the family’s income stream
for some period of time -- a short time for a short
marriage and a longer time for a longer marriage.
The income sharing will not be 50/50. Under the
guidelines awards range from a 30/70 to a 40/60
division of their combined incomes after divorce.
The result will be a fairer division of the true
assets of the marital partnership.
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Have any other
places tried something like post-marital income
awards?
Yes. Counties in California have experimented with
income-sharing guidelines for spousal support since
the 1970. Pennsylvania enacted guidelines for interim
support at the same time it passed its version
of child support standards. Canada has its own
version of voluntary guidelines in effect. Other
places, including New Mexico and counties in Virginia
and Kansas, have also studied, and begun to use,
guidelines.
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Is there any
other support for this approach to post-marital
income?
Yes. The American Academy of Matrimonial Lawyers
adopted a very similar approach in 2007. The AAML
report cited the lack of constituency and predictability
in awards that make settling cases difficult and
awards seem unfair as principal reasons for advocating
change.
The American Law Institute also endorsed guidelines
to promote consistency, predictability and equity,
albeit a far more complicated scheme than with
the AAML guidelines or this proposal for post-marital
income awards. |
