The Senate and Assembly have passed radical changes to the Domestic Relations Law which change how maintenance is calculated, the enactment of no fault as grounds, and revising pendente lite awards of counsel fees. 

S7740A is the Senate version of the amendment to the maintenance provision of DRL 236 B(6).

 It replaces the existing statutory factors now used to determine maintenance and replaces it with a mathematical formula.

In sum, bill provides that maintenance will be mandatory when one spouse’s income is 2/3 or less than the income of the other spouse. Once that threshold is met, then the amount of maintenance will be calculated using two formulas. Whichever formula gives the smaller award is the one which will be used.

The first formula is to take 30% of the higher spouse’s income, and from that subtract 20% of the lower’s spouse’s income. For the mathematically inclined, that’s M = .3H – .2L.

The second formula is to take 40% of the combined income of both spouses, and from that subtract the lower spouse’s income. Expressed as a formula, that comes to M = .4(H +L) – L.

The duration of the maintenance will be set by a formula too.

I’m playing with these formulas. But what I don’t see in the proposed amendment is any adjustment for a distributive award of future income under O’Brien. Assuming O’Brien remains good law in the near future, this new formula will result in grossly unfair awards to both ends of the spectrum; the spouses with the higher income will pay twice on the same income stream, and lower income spouses who take steps to become self sufficient before starting a divorce will suffer financially.

In addition, with specific cutoffs for maintenance awards, I expect to see quite a bit more pre-divorce planning designed reduce financial awards to the other spouse.

Stay tuned.