Spousal Maintenance Part 2 – Temporary
While a couple is working through the divorce process, one spouse may still need money from the other.
This money may be needed to pay bills and take care of his or her other needs until the financial details are worked out and the divorce becomes final.
For an overview of alimony/spousal maintenance, please read “Spousal Maintenance Part 1 – What Is It?”
NOTE: Please consult your professional advisers concerning whether the Tax Cuts and Job Act (TCJA) federal law in effect on Jan 1, 2019 affects your situation. See Spousal Maintenance Part 3 – Post-Divorce.
“NYS alimony tax laws changing in 2019“
Temporary Support Maintenance in Divorce
TSM resembles spousal maintenance but is assigned only after a divorce action has been initiated and while the couple is still married. It is awarded in family court.
There is no requirement that the parties be separated for a court to award spousal support. In many cases, a spouse seeks spousal support in family court because the couple has not divorced, yet the other spouse is not meeting his or her support obligations. TSM is intended to provide immediate or urgently needed financial resources.
When a TSM award is made in family court, the court does not set time limits on the award. This means that TSM can last for many years. To terminate or modify TSM, one of the spouses has to petition the court for a modification of the award.
During the divorce proceeding, the court will decide whether to award post-divorce spousal maintenance. The TSM payments end when a judge issues the Judgment of Divorce or upon the death of either party, whichever comes first.
Couples Can Decide TSM on Their Own
Spouses can form their own private settlement agreements in which they specify the amount of temporary spousal maintenance without using the NYS TSM Guidelines discussed below. Couples can agree to any deviation from the guidelines that they desire, and no explanation is required. There are conditions to such private arrangements. If they are not followed, then the agreement is unenforceable.
NYS Provides Guidelines for TSM
NYS provides a TSM formula by which the court can determine the guideline amount of TSM based on the couple’s income and other factors. Anyone may use the formula as a starting point for determining TSM payments.
If the court gets involved in determining TSM, the judge may either use the guideline amount or may deviate from it when making the final decision. If the latter, the judge must explain why he or she deviated from the “presumptive amount” determined by the formula and include that explanation in the written divorce records.
The court retains the ability to adjust the guideline amount of maintenance where it finds that amount to be unjust or inappropriate after consideration of one or more factors.
The NYS TSM Calculation
NYS defines TSM via a specific, mathematical formula based on income. The person who has the higher income (after adjustments are made to income, as applicable, by the formula) is called the “payor,” and the other spouse is called the “payee.”
When determining TSM, the court shall consider and allocate, where appropriate, the parties’ respective responsibilities for the family’s expenses (such as mortgage) while the divorce action is pending.
I provide more details on the calculation of the the guideline amounts for both temporary maintenance and spousal maintenance in the article, “Spousal Maintenance Part 4 – Calculations.”
The Relationship Between Temporary Spousal Support and Child Support
The TSM Guidelines Calculator does not include any child support payments in the calculation of the temporary maintenance amount. The steps are:
- The decision of whether child support will be paid must be made first. That decision affects which formula is used to calculate the TSM amount.
- The law expressly states that the maintenance amount (temporary or post-divorce) shall be calculated prior to the child support amount.
- If child support is to be paid, the amount of temporary maintenance is used in the child support calculation.
Temporary Spousal Maintenance Duration
TSM terminates upon death of either party or the issuance of a Judgment of Divorce.
Also, the temporary maintenance award shall not prejudice the rights of either party regarding a post-divorce maintenance award.
Links to Spousal Maintenance Series
- Spousal Maintenance Part 1 – What Is It?
- Spousal Maintenance Part 2 – Temporary (This post)
- Spousal Maintenance Part 3 – Post-Divorce
- Spousal Maintenance Part 4 – Calculations
Additional Divorce Spousal Support Resources
- New York Divorce and Family Law from DivorceNet.com by Nolo
- IRS Publication 504: Divorce or Separated Individuals (For use in preparing federal income tax returns)
- IRS Publication 17: Chapter 18 – Alimony: Tax Guide for Preparing Federal Income Tax Returns
- Special Types of Spousal Maintenance: There are other options as well to meet specific needs.
- Spousal Maintenance in New York State: Frequently asked questions about maintenance in New York State
Resources on NYS Spousal Maintenance Law
- NYS Maintenance and Child Support Tools These are tools NYS makes available to the public. They are adjusted as the law changes and the income cap is increased according to the Social Security cost-of-living-adjustments (COLA). Visit “Spousal Maintenance Part 4 – Calculations” for more information on calculating TSM and SM.
- 20 Factors Considered by NYS Courts in Deciding Spousal Maintenance
- Domestic Relations Law – Section 236: The full text.
- “NY Makes Radical Change in Spousal Support Law“
- “New York State Overhauls Spousal Maintenance Formula“
- “New York Divorce Essentials“
- “Frequently Asked Questions: Spousal Support & Maintenance“
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This blog and its materials have been prepared by BJ Mediation Services for informational purposes only and are not intended to be, are not, and should not be regarded as, legal or financial advice. Internet subscribers and online readers should not act upon this information without seeking professional counsel.