Temporary Maintenance Formula

Calulator on 100sWhen one spouse is paying all the carrying costs of the home, it is appropriate to reduce the presumptive temporary maintenance formula award to the other spouse by half of those costs.

So held the Appellate Division, Second Department, in its May 20, 2015 decision in Su v. Su, affirming an order of Nassau County Supreme Court Justice Jeffrey Goodstein that directed a wife to pay of the expenses of the home in which the parties were residing while the action was pending plus temporary maintenance to the husband of $200 per month.

In the divorce action commenced by the wife, the husband moved for pendente lite relief seeking, among other things, temporary spousal maintenance in the sum of $4,500.15 per month and to compel the wife to pay all of the carrying costs associated with the marital residence, where both he and the wife continued to reside.

In his order, Justice Goodstein directed the wife to pay 100% of the carrying costs associated with the marital residence, totaling $5,003 per month.

Using the statutory temporary maintenance formula (Domestic Relations Law § 236[ B][5-a][c]), Justice Goodstein also calculated the husband’s presumptive award of temporary maintenance to be $2,057 per month, but found that “it would be unjust and inappropriate” to direct the wife to pay both all of the carrying costs associated with the marital residence plus the presumptive award of temporary maintenance. Therefore, the court downwardly deviated from that presumptive award of temporary maintenance, and awarded the husband the sum of $200 per month.

The husband appealed, contending that the Supreme Court erred in its method of calculating the presumptive award of temporary maintenance and in awarding him the sum of only $200 per month.

Here, the Second Department agreed that the “significant downward deviation from [the] presumptive award of temporary maintenance” was appropriate.

The formula to determine temporary spousal maintenance . . . is intended to cover all of the payee spouse’s basic living expenses, including housing costs of food and clothing, and other usual expenses. . . In addition, where both parties continue to reside in the marital residence and one party is ordered to pay the carrying costs, the payor spouse may be credited with half those costs.

Here, nearly all of the husband’s basic living expenses included in the presumptive award of temporary maintenance were already to be paid by so much of the order as directed the wife to pay 100% of the carrying costs associated with the marital residence, as the court calculated these carrying costs to include the monthly costs for the mortgage, gas, electricity, telephone, water, groceries, home entertainment, household repairs, appliances, laundry, gardening/landscaping, and snow removal.

Moreover, the appellate court noted, the husband failed to demonstrate that the pendente lite award of $200 per month would leave him unable to meet his financial obligations. Under the circumstances, the Second Department held that Justice Goodstein properly downwardly deviated from the presumptive award of temporary maintenance to award the husband the sum of $200 per month

Comment: Although the decision notes that the carrying costs totaled $5,003 per month, it is not clear whether each of the open-ended obligations were capped. Thus, requiring the wife to pay all of the bills for groceries, home entertainment, and repairs, etc., could be problematic. Party at the Su home: caviar and white truffles to be served.

Philip Sands, of Garden City, represented the wife. Thomas Weiss & Associates, P.C., of Garden City, represented the husband.

On the wife’s motion for temporary relief, Supreme Court, New York County Justice Deborah A. Kaplan in Lennox v. Weberman, awarded the wife tax-free maintenance of $38,000 per month, plus the wife’s unreimbursed medical expenses up to $2,000 per month, interim counsel fees of $50,000, and expert fees of $35,000.

By its February 26, 2013 decision, the First Department modified that order, on the facts, to provide that such pendente lite relief would be treated as an advance on the 50 percent of the parties’ joint funds to which the wife is entitled pursuant to the parties’ prenuptial agreement.

Notwithstanding that the wife had waived any claim to a final award of alimony or maintenance in the parties’ prenuptial agreement, Justice Kaplan was entitled, in her discretion, to award pendente lite relief in the absence of an express agreement to exclude an award of temporary maintenance.

As to the amount of the temporary maintenance award, the appellate court found that Justice Kaplan properly applied the new temporary maintenance formula set forth at Domestic Relations Law § 236(B)(5–a)(c)(2)(a). Specifically, Justice Kaplan had listed all 19 of the enumerated factors, explained how 7 of them supported an upward deviation to $38,000 per month from the $12,500 a month in guideline support, and found that $38,000 per month was not “unjust or inappropriate.”

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