New formula for spousal support

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Before no-fault divorce, judges had discretion in setting the amount of support that the higher-earning spouse paid their estranged partner for the months or years it took to negotiate and finalize a divorce.

Now, judges are supposed to use a formula based on the spouses' relative incomes. They can consider up to 17 factors (19 for income over $500,000) in deciding whether to deviate from it, such as the need of one spouse to get training or education.

That has set off a chorus of complaints, mainly from matrimonial lawyers who say the law is badly written and unclear on how payments for household expenses and other costs are to be factored in. Mainly, they say, it can be unfair to higher earners.

"What the statute potentially does is shift the income and make the moneyed spouse the non-moneyed spouse and vice versa," said Lee Rosenberg, a Garden City lawyer.

He chairs the matrimonial law committee of the Nassau Bar Association, which, like the Suffolk bar association, wants the statute repealed.

While the formula was introduced to give some consistency to judges' maintenance awards, lawyers say results vary widely. Judges may consider different variables, or treat payments for household expenses differently.

Diane Carroll, a Melville attorney who heads the Suffolk bar association's matrimonial law committee, said she surveyed judges in that county and found that "everyone is acting and deciding differently. It's a mess."

Not everyone opposes the statute, however. Manhattan attorney Harold Mayerson said it's been fairer to women. "There was a long history of women coming up short in maintaining the marital standard of living in the temporary stage," Mayerson said.

He said appellate decisions would clarify the law, and that judges still used discretion in applying it. "They're trying to be fair," he said.

A recent appellate ruling said a lower court judge could order the wealthy husband of one of Mayerson's clients to pay health insurance and mortgage costs on top of maintenance payments as long as the judge explained her decision.

The state Law Revision Commission is reviewing actual maintenance awards from nine counties, including Nassau, said Rose Mary Bailly, its executive director. Recommendations to the State Legislature are due in mid-April, she said.

Commission chairman Peter Kiernan, a Manhattan attorney, said he believed there was a consensus emerging that the formula worked better for families with lower incomes. Income over $524,000 is already exempt from the formula, and one idea is to return discretion to judges when family income exceeds $136,000.

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