NEW YORK DIVORCE - ANOTHER AMENDMENT TO NEW MAINTENANCE LAW

On October 28, Gov. Cuomo signed into law a bill designed to clear up confusion that has developed over how spousal maintenance is treated when calculating child support. The bill, provides that spousal maintenance that is actually paid must be added to the recipient spouse's income, provided that the order contains an adjustment to take effect if the maintenance order is terminated. The new law contains a provision that where spousal maintenance is deducted from a payor's income, the order must have a provision automatically adjusting the payor's child support amount when maintenance payments end.

Prior court rulings have held that durational spousal maintenance payments should not be deducted from the payor's income unless the order specifies a mechanism for an adjustment if maintenance stops.

The new bill takes effect in 90 days and reflects that state and federal tax laws allows payor spouses to deduct maintenance payments from their taxes in recognition that the maintenance is income to the recipient and not money that is available any longer for use by the payor.