FIRST APPELLATE LEVEL DECISION ON TEMPORARY MAINTENANCE STATUTE

On February 7, 2012, the Appellate Division, First Department, decided the case of Khaira v. Khaira. The is the first appellate level decision which interprets the new temporary maintenance statute which became effective in October, 2010.

The enactment of the temporary maintenance statute in 2010 was an attempt by the legislature to create uniformity in maintenance awards. The legislation has been frequently criticized as creating a windfall for the recipient spouse. The statute provides a mathematical formula for awarding temporary maintenance during the pendency of a divorce action. A worksheet to calculate temporary maintenance can be found on the New York State Court’s website and can be viewed here.

Prior to the enactment of the temporary maintenance statute, it was routine for the court to order the monied spouse to pay such things as carrying charges on the marital residence, utilities and the like. Once the temporary maintenance statute was enacted, questions arose regarding whether the monied spouse could be compelled to pay both the maintenance derived from the formula and the carrying charges. Courts have gone both ways on this question, with some courts noting that after the maintenance award, the monied spouse is no longer the monied spouse.

In Khaira v. Khaira, the First Department held that under normal circumstances, the temporary maintenance award provided by the formula includes, carrying charges, utilities, etc. In other words, the temporary maintenance award is pretty much all the non- monied spouse is going to get in terms of a monthly payment (this does not include child support).

It will be interesting to see what the other Judicial Departments hold with respect to the temporary maintenance statute. Ultimately, this issue may be decided by the Court of Appeals. There are also various legislative initiatives underway to amend this statute, which many people feel is seriously flawed.

NO FAULT OR YOUR FAULT?

As most people know, the legislature amended the Domestic Relations Law to provide for true “no fault divorce” in 2010. New York’s version of irreconcilable differences is that the marriage is “irretrievably broken” for a period of six months or more. The legislature apparently envisioned a true no fault ground, so that if one party stated under oath that the marriage is irretrievably broken for a period of six months or more, there were grounds for a divorce.

So what happened? After the new statute was enacted, parties wishing to withhold the divorce tried to litigate the issue of whether the marriage was irretrievably broken. In other words, they wanted the opportunity to contest before the court whether or not the marriage was irretrievably broken. Various trial courts have been split on the issue, with some holding that all that is necessary is for one party to claim under oath that the marriage is irretrievably broken, while other courts holding that a party has the right to contest the issue. A recent decision from the Supreme Court in Suffolk County held that the party contesting the divorce had the right to contest the issue of whether the marriage was irretrievably broken, and gave the parties a trial on that issue. After the trial, the court found that the marriage was indeed irretrievably broken. I have spoken to the trial judge and he has advised me that the case probably will be appealed to the Appellate Division so that we will have an appellate level decision on this topic.

It seems that the more things change, the more they stay the same. If the legislature intended to enact true no fault divorce, perhaps it should have said so. Until then, New York will continue to have divorce blackmail (See my prior blog dated March 28, 2009).