Parties are free to agree upon what is fair for child support, equitable distribution, and maintenance when they negotiate their own divorce terms though mediation, settlement negotiations or collaborative cases. In litigated cases, in general, when it comes to making determinations during a divorce case about issues such as child support, equitable distribution, and maintenance, the court will generally follow a set of pre-appointed guidelines or principles that have been developed through years of case precedents or outlined in the most recent relevant statutes. This makes it easier for judges to establish a starting point from which to create orders. However, there are particular circumstances in a variety of different cases, which may allow for the standard amounts to be deviated from. This blog will be a summary about the awards at the end of a divorce case for child support, maintenance (alimony), and equitable distribution. Pendente lite or temporary awards (that which is ordered while the case is pending) has been the topic of previous articles and will be the topic of future blogs.
Child Support
In child support, the suggested basic child support amount may be changed as a result of the courts close consideration of the finances each parent has and the needs of the children to be cared for. Another reason why the court may deviate from guideline child support amounts could be attributed to the emotional or physical health of the child in question, as well as any aptitudes or special needs that child might have that may require extra expenses to be paid. What’s more, the court will need to consider the standard of living that the child has gotten used to within the parental relationship that they had previously – ensuring that a state of comfort remained intact following a divorce procedure. Aside from the reasons mentioned above, tax implications may cause a judge to deviate from a basic amount of support, as could the non-financial input a father or mother contributes to the wellness of a child.
In some cases, if the mother or father in the case considered would need to apply for additional education, the court could choose to weigh this information in determining whether they should deviate from the basic prescribed amount in the judgment of divorce. Further, if the financial resources that are available to support the children living with the adult receiving child support payments are significantly less than the payor parent, the court may choose to increase the child support awarded. In cases where extraordinary visitation expenses apply, there may also be changes made to the child support allowance to accommodate for the costs. All of the factors mentioned above must not only be considered in the award of any deviation from the child support guidelines for the first $141,000.00 of combined parental income (this initial threshold amount changes over time), but also how much child support, if any should be awarded to any individual for combined parental income above the threshold amount.
Durational Maintenance
In regards to the issue of maintenance, from the end of January, 2016, the rules will be changing in the way that a formula that is used to determine awards of durational maintenance, the maintenance awarded at the end of a divorce, if any, will be going into effect. Regardless of this, it’s worth noting that deviations from the given formula will be considered according to numerous different factors, including the health and age of parties involved, the future or present earning abilities of the parties, each party’s need to take part in educational or training endeavors, the end of child support awards, or the wasteful removal of marital property without careful consideration. The court may also consider the existence of a household the couple shared before a divorce, or before the marriage, alongside any acts committed by one party against another to limit that individual’s ability to earn more money, or achieve employment.
Further reasons for deviations from guideline amounts on maintenance orders include, the cost and availability of health insurance for both parties involved, the care required for stepchildren, disabled adults, or elderly parents, any tax consequences in play, the standard of living achieved during the marriage, the contributions of the payee as a spouse to the other partner, the lost or reduced earning capacity of a payee, and any other factor considered proper by the court.
The cap that will exists upon the income of a payor in a case of maintenance for the formula used by the New York court will be $175,000. Any consideration to use income above this amount will be conducted on the basis of court discretion, and the cap is expected to change naturally over time as the value of money changes, and the consumer price index continues to evolve. The length of the marriage will suggest a range of time for how long maintenance is suggested to last, but the elements mentioned above can be cited as reasons to deviate from the durational guidelines. It will also be within the discretion of the court to determine within any matrimonial proceeding whether permanent or temporary maintenance should be awarded in the available circumstances.
Equitable Distribution
Finally, in regards to the issue of equitable distribution – a concept that is frequently regarded as particularly complex in the area of divorce law, it’s worth noting that the starting point typically begins at a 50/50 share of the marital assets involved. This only takes into account the things that were acquired during the length of the marriage in question, and not any items that are regarded as “separate property”. Importantly however, it’s worth underlining the fact that “equitable” means what is considered to be fair according to the court – and this will not always mean the completely equal distribution of assets.
In order to determine what a “fair” distribution will be during any particular divorce case, a judge will need to consider the factors outlined within the Domestic Relations Law. For instance, the New York Court may consider a variety of different factors when separating marital property between parties, including financial resources, income, the age and health of both parties, and even the length of the marriage. Aside from these factors, other matters which the court may consider include whether a parent with custody over a child from the marriage will need to continue to live within the marital home, and whether any losses have been sustained in pension earnings and inheritance as a result of the divorce procedure. The court may consider the loss and cost of health insurance, as well as the contributions that the other spouse made towards maintaining the marital property that both spouses shared, and the career of the other individual. What’s more, the New York Court could consider the financial position that each individual involved in the divorce is expected to experience when moving on with their lives.
To learn more about the various aspects of child support, maintenance, and equitable distribution, please see our other blog entries and web pages. Also, feel free to call us about your initial consultation, it would be our pleasure to speak with you.