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The NYS Spousal Support Formula: Math or Madness?

Family & Matrimonial Law

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As many couples going through divorce or separation in New York are quickly learning, a few years back, the legislature decided that creating a mathematical formula for calculating spousal support (also known as spousal maintenance) was a good idea. For years, New York has had a formula for calculating child support, so why not create one for spousal maintenance?

Well, good idea or not, relegating the reallocation of a couple’s combined income to a simple calculation has begun to be the easy way out for attorneys and the courts. (Domestic Relations Law Section 236[B][6][c], [d]. Let’s face it; math doesn’t lie. But that does not mean that the results are always fair. Just because, at the time of a separation or divorce, one party makes more than the other does not mean that paying maintenance—because the formula says so—is a reasonable outcome.

For example, a childless couple married for 16 years where the Wife makes 92,000 and the Husband makes 42,000 would result in the formula requiring the Wife to pay the Husband approximately $10,712 a year for between 4.8 and 6.4 years. And that may make sense in that scenario, barring any issues over a party being underemployed or similar factors that could influence a court to deviate from the math. Aside from the formula’s impact on the sum to be paid, there is a scale for duration. For a couple married between 0-15 years, the scale requires support be paid for a minimum of 15% and a maximum of 30% of the length of the marriage. And the scale goes up. For marriages lasting between 15-20 years, the duration is a minimum of 30% to a maximum of 40%; for marriages of 20 years or more, the duration is 35% to 50% of the length of the marriage.

But math and duration scales aside, the Appellate Division for the Third Department recently, in a case called Hughes v. Hughes, (2021 WL 6066467, 2021 N.Y. Slip Op. 07322 3d Dept., 2021) circled back to the original and underlying reason for maintenance, acknowledging that just because a statutory calculation results in an amount of support to be paid, doesn’t mean it should be paid.

In the Hughes case, while the formula resulted in a calculation that would have required the wife to pay the husband support, the Court, rather than simply applying the math and entering an award, declined to order any spousal support. Why? Because the Court noted that statutory formulas, while all well and good, should not cause them to ignore the longstanding and unchanged maintenance precept—that spousal support is meant to be rehabilitative in nature; it is meant to provide relief to a lower-income spouse where a marriage is of long duration; a spouse has been out of the workforce for a number of years; and has sacrificed their career to make non-economic contributions to the marriage.

The Court noted that Mr. and Mrs. Hughes, married less than 5 years, were in proportionately the same income positions as they were when they got married at the time of their divorce. While Mrs. Hughes had a higher income (approx. $102,000 vs. Husband’s $41,300), the Court also noted that Mr. Hughes had the ability to earn more and had in fact turned down opportunities to further his career and education. These factors led the Court to conclude that the Husband demonstrated no career sacrifices during the marriage nor did he contribute to the Wife’s career and job success. This, coupled with the Wife’s obligation to pay off her student loans, led the Appellate Court to affirm the trial court’s denial of spousal support to the Husband despite the statutory formula demonstrating that an award would result.

The takeaway from this very insightful case is that, despite what the math says, the result should not be madness. The law remains driven by logical and reasonable factors and should not be relegated solely to calculations. To obtain a favorable result, attorneys need to work with their clients to determine all the underlying facts of their case that could argue for deviations from the statutory formula.

For well over two decades, Barbara has been representing parents, spouses and other parties from Long Island to the Capital Region, as well as clients nationally and internationally, in a wide range of family and matrimonial matters. She can be reached at or at (518) 556-2294.

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