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.
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