How is temporary maintenance calculated during a divorce?

What the Law Says

New York uses a mandatory formula to calculate temporary maintenance during divorce proceedings. The calculation applies unless the court finds it 'unjust or inappropriate' and states its reasons in writing.

The formula has two parts: first, it calculates a presumptive amount based on the parties’ incomes; second, it applies a cap on the payor’s income subject to the formula. As of 2024, the income cap is $192,000 — meaning only income up to that amount is used in the calculation.

The formula subtracts 20% of the payee’s income from 30% of the payor’s income. That result is then compared to 40% of the combined income minus the payee’s income. The lower of the two amounts is the presumptive temporary maintenance award.

Temporary maintenance ends when the divorce is finalized, unless extended by court order. Payments made under agreements or orders executed after December 31, 2018, are not deductible by the payor and not includible as income by the payee.

Statutory Text

The amount of temporary maintenance shall be the lesser of: (i) thirty percent of the payor spouse's income minus twenty percent of the payee spouse's income; or (ii) forty percent of the combined income of both spouses, minus the payee spouse's income.

— Domestic Relations Law § 236(B)(5-a)(C)(1)(a) — Temporary Maintenance Formula

Statutory Text

The court shall not consider income exceeding the income cap... which shall be adjusted every two years... to reflect changes in the consumer price index.

— Domestic Relations Law § 236(B)(5-a)(C)(1)(b) — Income Cap Adjustment

What Courts Have Said

New York courts have consistently upheld the statutory formula while emphasizing judicial discretion to deviate — only when supported by specific findings.

What to Do

Sources