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A Negotiation Tool for Spousal Maintenance

By ALM Staff | Law Journal Newsletters |

The temporary spousal maintenance law that became effective in New York State on Oct. 12, 2010, provides formulas for calculating temporary maintenance guidelines. While these relatively new formulas determine temporary maintenance amounts until the final resolution of the divorce, final maintenance (i.e., maintenance resulting from a divorce decree) has long-lasting effects on both parties. There is no one correct answer to the question how to determine the amount of final maintenance.

If the intent of both parties is to settle the dispute, reasonable income and expense forecasts must be made so that both parties understand the range of potential outcomes of a particular maintenance amount and duration. Knowing the range of likely outcomes based upon a particular amount and duration of spousal maintenance provides a framework for negotiations. Forecasting each spouse's financial future is an exercise in determining the “need” of the non-monied spouse, and the “ability to pay” of the monied spouse. We will call this forecasting process a “Need-Ability Exercise.”

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