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Formerly called alimony, spousal support (maintenance), has undergone many changes in recent years. In October 2010, new legislation created a new formula to be used in calculating temporary maintenance. More recently, the legislature has altered the original formula they issued to calculate both temporary and final orders of maintenance as well as provide an income cap for how much income of the monied spouse will be considered when determining maintenance and the ultimate duration of final awards of maintenance. Under the newly amended statute, child support must be calculated prior to determining maintenance and the court-ordered child support must be deducted from the party paying child support and added to the party receiving the child support, depending upon whether the party paying maintenance has custody or not. This is all still very new and not very well understood, as not a lot of cases have been decided yet.
In the context of divorce proceedings, complications may arise when the court must determine who will be responsible for mortgage or rental payments, utilities, and household expenses of the household of the party receiving maintenance after an award of temporary maintenance has been made.
The procedures in Family Court differ somewhat from Supreme Court. In a divorce action, the amount of temporary support granted to the “non-monied” spouse should be determined early in the case and can have a profound effect on the development and outcome of your case. It is extremely important to be represented at these early stages of the proceedings, so as not to be unnecessarily placed in a position where, if you are the spouse with the money, you are ordered to pay so much money that you are left with insufficient funds to support yourself or, worse yet, where you are ordered to pay more money than you actually make.
Additionally, there are important tax implications and consequences which pertain to maintenance awards. Mangi & Graham is familiar with the new legislation in this area and can provide you with sophisticated advice whether you are the payor or the payee. Self-employed individuals, who claim unrealistic income figures to the court (such as where it is not sufficient to meet all of the party’s regularly occurring monthly expenses) may have income imputed to them on top of the income they have disclosed.
Though an application for spousal support can be brought in both Family Court and Supreme Court, the procedures differ in each court and you should certainly consult with a seasoned attorney familiar with both courts to determine where it would be best to bring your application. If a divorce action has already been commenced by either party, an application for spousal support subsequently filed in the Family Court would likely be dismissed for lack of jurisdiction, since Family Court loses the ability to hear such cases the moment that the issue has been brought up in Supreme Court. Where, however, the Family Court had previously issued a final order of spousal support prior to the initiation of the divorce action, a petition to enforce such Family Court order can be filed in the Family Court even during the course of the divorce proceeding, as the Family Court would still retain the jurisdiction to enforce its own orders.
Our family lawyers, who serve Suffolk County and surrounding counties, are often consulted by individuals seeking to modify prior orders of spousal support (maintenance). Whether such an application should be brought depends upon a great many factors, including the wording of any prior stipulations between the parties, whether the party receiving spousal support has remarried, or where financial circumstances have changed since the time of the order, such that the existing order places a significant and undue hardship upon the party ordered to make the payments.