In addition to providing a guideline for the amount of a maintenance (alimony) award, New York’s relatively new maintenance (alimony) statute includes a presumptive range for the period of time maintenance is to be paid based upon the length of the marriage. Particularly with short marriages, what should be the impact of the length of the marriage on the award of maintenance while the divorce action is pending? Put differently, should a spouse be able to increase support, just by keeping the divorce action going?

In her August 31, 2017 decision in Barlik v. Barlik, Acting Queens County Supreme Court Justice Elisa S. Koenderman was faced with that issue.

Among the temporary relief sought by the parties in this divorce action, the parties husband cross-moved for exclusive use and occupancy of the marital residence. The wife moved, in part, for temporary maintenance and child support and for an order directing the husband to pay 100% of the carrying costs of the marital residence; an order appointing a forensic accountant to value the income from the husband’s business as well as a real estate appraiser to value the marital residence, both at the husband’s expense; and for counsel fees.

Justice Koenderman first denied the husband’s motion for exclusive use and occupancy, but granted the wife’s cross-motion for exclusive use and occupancy of the marital residence.

The Court then granted the wife’s motion for temporary maintenance and child support. As required by the statute, the court calculated the guideline amount by applying the statutory formula to the payor’s income up to the statutory cap of $178,000 (see DRL § 236[B][5-a][b][5] & [6]). Then, the court may adjust the guideline amount of temporary maintenance if it is “unjust or inappropriate” (DRL § 236[B][5-a][h][1]). The court must consider certain enumerated factors, including but not limited to the health and age of the parties; the present or future earning capacity of the parties; and care of children during the marriage that inhibits a party’s earning capacity, as well as any other factor which it finds just and proper to determine “whether and to what extent it will apply the statutory formula” to the payor’s income which exceeds the statutory cap.


Continue Reading Considering the Length of the Marriage and Other Factors on Temporary Support Awards

A wife has been awarded the $475,000 annual rent received by a husband who leased out the parties’ East Hampton residence. The parties’ divorce Modification Agreement provided that the wife shall have “exclusive use and possession of the East Hampton Residence . . . until September 30, 2017 or her earlier remarriage or cohabitation with

Considering the add-ons for private school, health care, child care, and extra-curricular activities, imposing a base child support obligation upon a father (the less-moneyed spouse) in excess of his pro rata share of the first $136,000 of combined parental income would be unjust and inappropriate. Such was the holding of Acting Supreme Court Kings County Justice Debra Silber in her August 12, 2013 decision in A.C. v. J.O.

That ruling, at first blush, would appear to be at odds with the Second Department’s August 14, 2013 decision in  Beroza v. Hendler, the subject of Monday’s blog post. There, the appellate court held it was improper for the trial court to have limited the base child support obligation of the father (the less moneyed spouse) to less than his pro rata share of the first $400,000 in combined parental income.

Any comparison, however, must be clouded by the vast number of factors that Justice Silber considered when deciding all of the issues incident to the parties’ divorce.

In A.C. v. J.O., at the time of the commencement of the divorce action in May, 2011, the parties had been married for almost 13 years. They had two children, a daughter now 12 and a son now 10. The parties were still living together. The wife, 52 years old, had her own dental practice, with income stipulated to be $251, 395. The husband, 47, worked as a first assistant director, primarily for television. He also wrote screenplays and recently made a full length film, which he both wrote and directed. The husband’s income was stipulated to be $171,706.

In a lengthy opinion, Justice Silber awarded the mother both physical and legal (decision-making) custody of the two children. Although both parents could handle parenting responsibilities alone, joint custody was not appropriate as the parents’ “cannot easily agree upon anything.” Justice Silber provided a detailed plan for the father’s “parental access” and consultation on major decisions.


Continue Reading No Child Support Awarded Upon Combined Parental Income in Excess of $136,000 Statutory Cap

No retroactive fine or suspension of maintenance is to be  imposed against a wife who violated her so-ordered stipulation not to allow her paramour into the marital residence. Instead, suspension of maintenance and a fine would only be imposed prospectively and only until the wife complied with that stipulation. Civil contempt fines are not intended

In a May 8, 2013 decision in Mejia v. Mejia, the Appellate Division, Second Department, modified a divorce judgment’s provisions concerning the cap on combined parental income, the disposition of the marital residence, college expenses for three children ages 14, 10 and 6, and judgment inconsistencies with the underlying decision and judgment  formalities.

After the parties separated, they each petitioned the Family Court for custody of the children. The parties consented that they share joint legal custody, and that the father have primary physical custody.

After a non-jury trial on certain financial issues, the Family Court considered the first $200,000 of combined parental income in determining child support, based upon, among other things, “the economic reality of life in Rockland County,” and a determination that the gross income of the mother was substantially less than that of the father. The mother’s pro rata share of the basic child support obligation was 37% of 29% of the first $200,00 of combined parent income was fixed at $1,789 per month in the 2011 Family Court order.

The marital residence, titled in the parties’ joint names, was awarded to the father and the children, based upon the father’s claim that there was no equity in the house. The court further concluded in its decision that the father should maintain health insurance for the children, and that the mother should pay 37% of the college expenses of the children.

The Second Department lowered to $150,000 the applied cap on combined parental income, “considering the substantial difference between the parties’ income, the fact that the [mother] has less income than the [father], and the amount of parenting time awarded to the [mother].” Calculated on that basis, the mother’s pro rata share of the child support obligation was $1,341 per month.


Continue Reading The Second Department Rules on Child Support Parental Income Cap, Transfer of the Marital Residence, and Judgment Formalities