It took nine years to affirm a five-year maintenance award. In an April 24, 2019 decision of the Appellate Division, Second Department, the Court in Rogowski v. Rogowski affirmed a March, 2010 divorce judgment under which the wife was awarded maintenance for five years of $2500 per month plus 60% of the husband’s annual employment bonus in excess of $14,200. The action for divorce had been commenced in 2008.

The Court held that held that Nassau County Supreme Court Justice Arthur Diamond did not improvidently exercise his discretion when determining the amount and duration of maintenance. The Court emphasized the parties agreed that the wife would quit work and care for the children, and the parties’ respective incomes and future employment prospects.


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In the absence of some other compelling factor, where a noncustodial parent’s child spends 33 to 40 percent of the time with that parent, a reduction in child support from the presumptively correct formula amount is not warranted. So held Ontario County Family Court Judge Stephen D. Aronson in his October 4, 2016 decision in T.M. v. J.K.

Here, the parties were the biological parents of one child born in 2001. The mother filed a petition seeking child support. Following a hearing, the support magistrate concluded that the father’s biweekly support obligation according to the Child Support Standards Act (CSSA) formula would be $396. However, the support magistrate also found that application of the CSSA formula would be inappropriate because the child spent at least 35 to 40 percent of the time with father. This, the support magistrate held, constituted an amount of time sufficient to justify deviating from the formula, awarding the mother $270 biweekly.

The mother filed objections to the support magistrate’s order, alleging that the significant discrepancy in the parties’ financial resources and the support magistrate’s misallocation of time spent with each parent warranted imposing the formula. Specifically, she contended that the father had more disposable income, fewer expenses, and more resources. She also asserted that she has more debt, including a credit card balance (consisting of charges needed to cover her expenses) and a large school loan. It was also noted that the father paid no child support (apparently by agreement) from 2006 through 2015. (The parties did not dispute the support magistrate’s formula calculation, although Judge Aronson found the amount to be incorrect.)


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In its January 7, 2016 decision in Fermon v. Fermon, the Appellate Division, Third Department, affirmed that part of the order of Rensselaer County Supreme Court Justice Raymond J. Elliott, III, that included in a permanent award of child support that the husband pay 25% of his future bonuses from his employer.

Here, the parties were married in 2000 and had two sons (born in 2002 and 2006). They were divorced in 2012 and, pursuant to a written stipulation of settlement that was incorporated but not merged with the judgment of divorce, they retained joint custody of the children and waived application of the Child Support Standards Act (see Domestic Relations Law § 240 [1-b]) to provide for no payments of basic child support.

Extensive motion practice ensued, with the wife seeking a variety of relief that included modification of the custody and child support provisions of the judgment, an assessment as to whether the husband committed fraud in the negotiations that led to the execution of the stipulation and an award of counsel fees to the wife. Justice Elliott conducted a hearing on the motions, after which he modified the provisions of the judgment to grant the wife sole legal custody of the children and directed the husband to pay the wife basic child support, arrearages and various add-ons> He further directed the husband to pay an additional $11,500 to the wife due to his alleged fraud in misrepresenting the value of his individual retirement account, and awarded the wife $35,000 in counsel fees. Both parties appealed.


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Calculator formulaOn June 24, 2015, the New York State Senate passed Bill A7645-2015 relating to the duration and amount of temporary and post-divorce spousal maintenance. The bill passed the State Assembly on June 15th. It awaits approval by Governor Cuomo.

The law’s formulas apply to actions commenced on or after the 120th day after they become law (except for the temporary maintenance formulas which apply to actions commenced on or after the 30th day after they become law). The new law may not be used as a basis to change existing orders and agreements.

The law will undoubtedly be the subject of numerous articles and legal seminars. Years of decisions will be forthcoming that particularly focus on matters of discretion, just as they followed the enactment of the Child Support Standards Act in 1989.

Before getting to the new formulas, the law eliminates a major thorn in side of the matrimonial bench and bar: When equitably distributing the assets of the parties, the court is no longer to consider as a marital asset the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement (however, it may be condidered when making other distributive awards).

As to maintenance, the following highlights may be noted, many of which are contained in the Sponsor’s Memo:


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Calulator on 100s 6 redThe Third Department gave us insight into its analysis of child support awards in two recent decisions in which it increased those awards.

What to do when the parents’ combined income exceeds the Child Support Standards Act (C.S.S.A.) cap, now $141,000, appears to be, at the trial level, often county-, if not judge-dependent. Use by the lower courts around the state upon these decisions will vary, perhaps greatly.

In Petersen v. Petersen, decided February 26, 2015, the Third Department increased the divorce-action award of Albany Supreme Court Justice Eugene P. Devine (now, himself, sitting on the Third Department).

The parties had one child, born in 1999. After the parties separated and lived apart for several years, the husband commenced this divorce action based on the parties’ separation agreement. After finding that the child support provision of the separation agreement did not comply with the Child Support Standards Act, a trial was held to address, among other things, child support.

Justice Devine granted the divorce, incorporated the parties’ separation agreement except for the weekly child support provision, and ordered the husband to pay child support in the amount of $414 per week, declining to order child support on any income above the C.S.S.A. statutory cap, then $136,000 (and now $141,000). The wife appealed.


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