Underground Maintenance Formulas in New York

The 'Buffalo' Formula

There is a general agreement among matrimonial attorneys in Buffalo that they should apply the “Jeff Spencer Maintenance Formula” as a starting point for post-divorce maintenance discussions. The formula is described in Chart 1 below.

During our interview with Mr. Spencer, it became clear that his formula had been slightly altered by attorneys over the years, which was not surprising as the unadopted formula has been passed down from attorney to attorney for 20 years. The “true” Jeff Spencer maintenance formula appears in Chart 2, below.

Mr. Spencer advised that a full-time (35-40 hour/week) income should be reflected or estimated in determining the income of the parties when using his formula. However, full-time income should not be imputed if the unemployed or underemployed spouse has health problems, severe disabilities, cares for someone ill, cares for very young children or there is some other circumstance which precludes full time employment.

The 'Rochester' Formulas

There is no consensus in Rochester with regard to an informal maintenance formula, yet there are various informal formulas utilized there. The amount of maintenance depends on the income of the parties, with the attorneys in some instances attempting to equalize the income of the parties. The duration of maintenance is typically equal to one-third or one-fourth the length of the marriage.

One attorney in Rochester advised us of two informal formulas used in Rochester as reference points to determine maintenance. In an e-mail from him with an attached Informal Maintenance Chart, this Matrimonial Attorney, supplied a Chart (a) Jeff Spencer Maintenance formula (as applied in Buffalo) already discussed in great detail above. Therefore, the chart is not replicated here. Chart (b), however, the formula provided at a State Bar presentation, is shown below.

Collaborative Law Rochester Attorney Formula

A collaborative law attorney in Rochester begins maintenance negotiations by reviewing various formulas applied by the courts, discussing realistic budgets and assessing each party's ability to earn income. Thereafter, the parties determine how much additional income the lower wage earner requires to meet his or her reasonable needs. Some parties also build a threshold into the award, with the payee's maintenance award decreasing proportionately to payee's increases in income over a certain amount. Despite this approach, most parties tend to begin with 25% of the difference in incomes for 1/3 the term of the marriage, unless there are significant retirement monies and they are close to retirement age.

Individual Judges in Rochester Formulas

The individual judges in Rochester each have their own approach to determining maintenance. Id. The judges tend to grant maintenance awards for one-third the length of the marriage, or, maintenance may be awarded until retirement for older couples with very disparate earnings.

Judge #1 Maintenance Formula

25% of the difference in gross incomes.

Judge #2 Maintenance Formula

8%-10% of the higher earner's gross income prior to calculating child support

Judge #3 Maintenance Formula

14%-16% of the difference in gross incomes.

Judge #4 Maintenance Formula

Net income shared equally between the parties.

Judge #5 Maintenance Formula

No maintenance if lower earner is “self-supporting.”

The 'NYC' Formulas (or Lack Thereof)

In New York City, Queens, Nassau County, and Suffolk County there is no consensus with regard to an informal maintenance formula. A matrimonial attorney advised that one wild estimate to calculate maintenance consists of the following:

Anonymous Attorney NYC Formula

Maintenance awards should be no more than 1/3 of the higher earner's gross income when maintenance and child support are combined. Despite each attorney's “deeply held, but different conviction” with regard to the duration of maintenance, the duration often ranges from 1/3 to 1/2 the duration of marriage.

The 'Albany' Formula (or Lack Thereof)

Thre is no informal maintenance formula utilized in the Albany area. One attorney advised that he uses a common sense approach when attempting to calculate maintenance by using the parties' net income, comparing the parties' needs and ability to pay, evaluating statutory factors as well as other factors, such as when child support will terminate and any college expense sharing agreements. Another attorney in that city advised that there is a general agreement among attorneys in Albany that maintenance is not long-term, and at least one court generally will not grant maintenance for more than six years.

The 'Syracuse' Formula

There is a general consensus among matrimonial attorneys in Syracuse that they should use a version of the “Buffalo” formula as a starting point for maintenance, but then negotiate from that suggested set of guidelines. The formula, as Steven A. Paquette, Green & Seifter, Attorneys, PLLC, Syracuse, understands it, is as follows.

Syracuse Formula

1/4 to 1/3 the disparity in income for 1/4 to 1/3 the duration of the marriage

Once the Syracuse formula is applied, myriad other factors are considered in the negotiation, including the parties' health, earning power, age, time needed to become self-supporting, amount of time until eligible for Social Security disability and the asset base of each party after equitable distribution. Additionally, marriages of very short duration seldom have maintenance components, marriages of middling duration lean toward the lower maintenance range, and marriages of long duration lean toward the higher maintenance range.

The AAML Commission Recommendations

The American Academy of Matrimonial Lawyers (AAML) Commission studied maintenance formulas used across the country and recommended a formula for calculating maintenance. Am. Acad. of Matrim. Law, Considerations when Determining Alimony, Spousal Support or Maintenance (March 9, 2007), http://www.aaml.org/go/library/articles/alimony-guidelines (last visited March 5, 2010). The Commission advised that maintenance should be calculated prior to determining child support, the formula should not be applied to cases with a combined yearly gross income of more than $1 million, and the presence of certain deviation factors may require adjustment of the award.

The AAML Formula

Amount: Unless a deviation factor applies, maintenance is calculated by taking 30% of payor's gross income minus 20% of payee's gross income not to exceed 40% of the combined gross income of the parties.

Duration: Unless a deviation factor applies, multiply the length of the marriage by the following factors: 0-3 years (.3); 3-10 (.5); 10-20 years (.75); over 20 years (permanent)

Deviation factors that may require adjustment of amount and/or duration of award:

1) Spouse is the primary caretaker of a dependant minor or disabled adult child; 2) Spouse's pre-existing court-ordered support obligations; 3) Spouse is complying with court-ordered payment of debts or other obligations (including uninsured or unreimbursed medical expenses); 4) Spouse's unusual needs; 5) Spouses' age or health; 6) Spouse has given up a career, a career opportunity or otherwise supported the career of the other spouse; 7) Spouse received a disproportionate share of the marital estate; 8) Unusual tax consequences; 9) Other circumstances making application of these considerations inequitable; and 10) Parties agreed otherwise.

The New Legislation

New York State Assembly Bill A10984B, just signed into law, provides a formula to determine a presumptive award of temporary maintenance. The Bill requires the court to award temporary maintenance in accordance with the formula. However, if the court finds the award would be unjust or inappropriate it may adjust the award after considering various factors. The formula applies up to and including $500,000 of payor's income, and, for payor's income in excess of the cap, “the court shall determine any additional guideline amount of temporary maintenance” after considering various listed factors. Special provisions also apply when application of the formula would put the payor below the self support reserve. Further, the parties may opt out of the temporary maintenance formula.

Bill A10984B Formula for Temporary Maintenance

Amount: 1) Determine income of each party as defined in the CSSA (gross income less FICA); 2) Subtract 20% of payee's income from 30% payor's income up to and including the income cap of the payor; 3) Multiply the sum of payor's income up to and including the income cap and all of payee's income by 40%; 4) Subtract the income of the payee from the amount derived in (3) above; 5) The temporary maintenance amount shall be the lower of the amounts derived by items (2) and (4) above.

Duration: “The court shall determine the guideline duration of temporary maintenance by considering the length of the marriage. Temporary maintenance shall terminate upon the issuance of the final award of maintenance or the death of either party, whichever occurs first.”

Disparate Results Based on Application of the Various Formulas

To illustrate the disparate results from applying the various informal formulas listed above, the hypothetical situation in Chart 4, below, is applied to all formulas herein.

The informal formulas discussed in Chart 4 and as applied to the simplified hypothetical demonstrate disparate results for those similarly situated. Excluding the formula utilized by Judge #5 in Rochester (who would not award maintenance based on the lower earner's ability to be self-supporting), the yearly maintenance award ranges from $6,000 to $25,000 per year and the duration of maintenance ranges from 2' years to 4' years. Again, excluding Judge #5's formula, the total maintenance paid overall ranges from $18,000 to $112,500.

There are various factors certain formulas take into account that must be addressed. First, maintenance should be calculated prior to child support because legally and practically speaking the amount of maintenance paid is no longer available income for the payor and is readily available income for the payee.

Second, the disparity in the parties' income should be the pertinent factor in the amount of maintenance ordered rather than merely the income of the higher earner to avoid a windfall for the lower earner.

Third, the formula should not attempt to equalize the income of the parties because the higher earner spouse is the one who completes the work to remain employed, may have spent many years achieving the requisite education to qualify for the position and may work excessive hours to maintain the position. Although the lower earner spouse may have also made sacrifices, it's inherently unfair to allow the lower earner to reap all of the benefits of the higher earner's continued efforts after the marriage is dissolved.

Fourth, the lower earner's income should reflect a full time income unless the lower earner is legitimately precluded from working full time as recommended by Mr. Spencer. This creates an incentive for the lower earner to work full time as the maintenance award will be reduced based on the lower spouse's imputed full time income.

Finally, although the duration of the marriage should impact the maintenance award, it should not impact both the amount and duration of maintenance and it should never be the sole criteria on which to award permanent maintenance or deny maintenance in its entirety.

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Carrie Lee Weremblewski is a law clerk at Feuerstein & Smith, LLP in Buffalo, NY, focusing primarily on family and matrimonial law. E-mail: [email protected]. Phone: 716-864-9468. David B. Smith is a managing partner at the firm, with a substantial portion of his practice consisting of family and matrimonial actions. E-mail: [email protected]. Phone: 716-856-9704.

Editor's Note: When a new client asks you during a consultation about how “the law” calculates spousal support, what is your answer? Do you state with certainty how maintenance is calculated? Have you ever attempted to create a mathematical formula to calculate maintenance? In the following article, the authors asked attorneys all over New York state how to calculate maintenance and learned that the approach to this topic varied widely throughout the state. One of the formulas, however, was adopted by the legislature and the bill containing the formula was just signed by the Governor of New York at the time this edition of The Matrimonial Strategist went to press.

The Underground Maintenance Formulas Used in New York

Attorneys throughout New York State regularly utilize informal mathematical formulas to determine maintenance payments. Individual attorneys, judges and various regions apply different formulas, several formulas or, worse yet, no formula at all. Moreover, now that Bill A10984B pertaining to temporary maintenance has become law, post-divorce maintenance will continue to remain discretionary. Thus, under the current practice a party seeking divorce may engage in forum shopping within the state to achieve a more favorable post-divorce maintenance award.

The 'Buffalo' Formula

There is a general agreement among matrimonial attorneys in Buffalo that they should apply the “Jeff Spencer Maintenance Formula” as a starting point for post-divorce maintenance discussions. The formula is described in Chart 1 below.

During our interview with Mr. Spencer, it became clear that his formula had been slightly altered by attorneys over the years, which was not surprising as the unadopted formula has been passed down from attorney to attorney for 20 years. The “true” Jeff Spencer maintenance formula appears in Chart 2, below.

Mr. Spencer advised that a full-time (35-40 hour/week) income should be reflected or estimated in determining the income of the parties when using his formula. However, full-time income should not be imputed if the unemployed or underemployed spouse has health problems, severe disabilities, cares for someone ill, cares for very young children or there is some other circumstance which precludes full time employment.

The 'Rochester' Formulas

There is no consensus in Rochester with regard to an informal maintenance formula, yet there are various informal formulas utilized there. The amount of maintenance depends on the income of the parties, with the attorneys in some instances attempting to equalize the income of the parties. The duration of maintenance is typically equal to one-third or one-fourth the length of the marriage.

One attorney in Rochester advised us of two informal formulas used in Rochester as reference points to determine maintenance. In an e-mail from him with an attached Informal Maintenance Chart, this Matrimonial Attorney, supplied a Chart (a) Jeff Spencer Maintenance formula (as applied in Buffalo) already discussed in great detail above. Therefore, the chart is not replicated here. Chart (b), however, the formula provided at a State Bar presentation, is shown below.

Collaborative Law Rochester Attorney Formula

A collaborative law attorney in Rochester begins maintenance negotiations by reviewing various formulas applied by the courts, discussing realistic budgets and assessing each party's ability to earn income. Thereafter, the parties determine how much additional income the lower wage earner requires to meet his or her reasonable needs. Some parties also build a threshold into the award, with the payee's maintenance award decreasing proportionately to payee's increases in income over a certain amount. Despite this approach, most parties tend to begin with 25% of the difference in incomes for 1/3 the term of the marriage, unless there are significant retirement monies and they are close to retirement age.

Individual Judges in Rochester Formulas

The individual judges in Rochester each have their own approach to determining maintenance. Id. The judges tend to grant maintenance awards for one-third the length of the marriage, or, maintenance may be awarded until retirement for older couples with very disparate earnings.

Judge #1 Maintenance Formula

25% of the difference in gross incomes.

Judge #2 Maintenance Formula

8%-10% of the higher earner's gross income prior to calculating child support

Judge #3 Maintenance Formula

14%-16% of the difference in gross incomes.

Judge #4 Maintenance Formula

Net income shared equally between the parties.

Judge #5 Maintenance Formula

No maintenance if lower earner is “self-supporting.”

The 'NYC' Formulas (or Lack Thereof)

In New York City, Queens, Nassau County, and Suffolk County there is no consensus with regard to an informal maintenance formula. A matrimonial attorney advised that one wild estimate to calculate maintenance consists of the following:

Anonymous Attorney NYC Formula

Maintenance awards should be no more than 1/3 of the higher earner's gross income when maintenance and child support are combined. Despite each attorney's “deeply held, but different conviction” with regard to the duration of maintenance, the duration often ranges from 1/3 to 1/2 the duration of marriage.

The 'Albany' Formula (or Lack Thereof)

Thre is no informal maintenance formula utilized in the Albany area. One attorney advised that he uses a common sense approach when attempting to calculate maintenance by using the parties' net income, comparing the parties' needs and ability to pay, evaluating statutory factors as well as other factors, such as when child support will terminate and any college expense sharing agreements. Another attorney in that city advised that there is a general agreement among attorneys in Albany that maintenance is not long-term, and at least one court generally will not grant maintenance for more than six years.

The 'Syracuse' Formula

There is a general consensus among matrimonial attorneys in Syracuse that they should use a version of the “Buffalo” formula as a starting point for maintenance, but then negotiate from that suggested set of guidelines. The formula, as Steven A. Paquette, Green & Seifter, Attorneys, PLLC, Syracuse, understands it, is as follows.

Syracuse Formula

1/4 to 1/3 the disparity in income for 1/4 to 1/3 the duration of the marriage

Once the Syracuse formula is applied, myriad other factors are considered in the negotiation, including the parties' health, earning power, age, time needed to become self-supporting, amount of time until eligible for Social Security disability and the asset base of each party after equitable distribution. Additionally, marriages of very short duration seldom have maintenance components, marriages of middling duration lean toward the lower maintenance range, and marriages of long duration lean toward the higher maintenance range.

The AAML Commission Recommendations

The American Academy of Matrimonial Lawyers (AAML) Commission studied maintenance formulas used across the country and recommended a formula for calculating maintenance. Am. Acad. of Matrim. Law, Considerations when Determining Alimony, Spousal Support or Maintenance (March 9, 2007), http://www.aaml.org/go/library/articles/alimony-guidelines (last visited March 5, 2010). The Commission advised that maintenance should be calculated prior to determining child support, the formula should not be applied to cases with a combined yearly gross income of more than $1 million, and the presence of certain deviation factors may require adjustment of the award.

The AAML Formula

Amount: Unless a deviation factor applies, maintenance is calculated by taking 30% of payor's gross income minus 20% of payee's gross income not to exceed 40% of the combined gross income of the parties.

Duration: Unless a deviation factor applies, multiply the length of the marriage by the following factors: 0-3 years (.3); 3-10 (.5); 10-20 years (.75); over 20 years (permanent)

Deviation factors that may require adjustment of amount and/or duration of award:

1) Spouse is the primary caretaker of a dependant minor or disabled adult child; 2) Spouse's pre-existing court-ordered support obligations; 3) Spouse is complying with court-ordered payment of debts or other obligations (including uninsured or unreimbursed medical expenses); 4) Spouse's unusual needs; 5) Spouses' age or health; 6) Spouse has given up a career, a career opportunity or otherwise supported the career of the other spouse; 7) Spouse received a disproportionate share of the marital estate; 8) Unusual tax consequences; 9) Other circumstances making application of these considerations inequitable; and 10) Parties agreed otherwise.

The New Legislation

New York State Assembly Bill A10984B, just signed into law, provides a formula to determine a presumptive award of temporary maintenance. The Bill requires the court to award temporary maintenance in accordance with the formula. However, if the court finds the award would be unjust or inappropriate it may adjust the award after considering various factors. The formula applies up to and including $500,000 of payor's income, and, for payor's income in excess of the cap, “the court shall determine any additional guideline amount of temporary maintenance” after considering various listed factors. Special provisions also apply when application of the formula would put the payor below the self support reserve. Further, the parties may opt out of the temporary maintenance formula.

Bill A10984B Formula for Temporary Maintenance

Amount: 1) Determine income of each party as defined in the CSSA (gross income less FICA); 2) Subtract 20% of payee's income from 30% payor's income up to and including the income cap of the payor; 3) Multiply the sum of payor's income up to and including the income cap and all of payee's income by 40%; 4) Subtract the income of the payee from the amount derived in (3) above; 5) The temporary maintenance amount shall be the lower of the amounts derived by items (2) and (4) above.

Duration: “The court shall determine the guideline duration of temporary maintenance by considering the length of the marriage. Temporary maintenance shall terminate upon the issuance of the final award of maintenance or the death of either party, whichever occurs first.”

Disparate Results Based on Application of the Various Formulas

To illustrate the disparate results from applying the various informal formulas listed above, the hypothetical situation in Chart 4, below, is applied to all formulas herein.

The informal formulas discussed in Chart 4 and as applied to the simplified hypothetical demonstrate disparate results for those similarly situated. Excluding the formula utilized by Judge #5 in Rochester (who would not award maintenance based on the lower earner's ability to be self-supporting), the yearly maintenance award ranges from $6,000 to $25,000 per year and the duration of maintenance ranges from 2' years to 4' years. Again, excluding Judge #5's formula, the total maintenance paid overall ranges from $18,000 to $112,500.

There are various factors certain formulas take into account that must be addressed. First, maintenance should be calculated prior to child support because legally and practically speaking the amount of maintenance paid is no longer available income for the payor and is readily available income for the payee.

Second, the disparity in the parties' income should be the pertinent factor in the amount of maintenance ordered rather than merely the income of the higher earner to avoid a windfall for the lower earner.

Third, the formula should not attempt to equalize the income of the parties because the higher earner spouse is the one who completes the work to remain employed, may have spent many years achieving the requisite education to qualify for the position and may work excessive hours to maintain the position. Although the lower earner spouse may have also made sacrifices, it's inherently unfair to allow the lower earner to reap all of the benefits of the higher earner's continued efforts after the marriage is dissolved.

Fourth, the lower earner's income should reflect a full time income unless the lower earner is legitimately precluded from working full time as recommended by Mr. Spencer. This creates an incentive for the lower earner to work full time as the maintenance award will be reduced based on the lower spouse's imputed full time income.

Finally, although the duration of the marriage should impact the maintenance award, it should not impact both the amount and duration of maintenance and it should never be the sole criteria on which to award permanent maintenance or deny maintenance in its entirety.

[IMGCAP(1)]

[IMGCAP(2)]

[IMGCAP(3)

[IMGCAP(4)]

Carrie Lee Weremblewski is a law clerk at Feuerstein & Smith, LLP in Buffalo, NY, focusing primarily on family and matrimonial law. E-mail: [email protected]. Phone: 716-864-9468. David B. Smith is a managing partner at the firm, with a substantial portion of his practice consisting of family and matrimonial actions. E-mail: [email protected]. Phone: 716-856-9704.