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BECAUSE THE JUDGE DEVIATED FROM THE STATUTORY CRITERIA FOR THE CALCULATION OF TEMPORARY MAINTENANCE, THE JUDGE SHOULD HAVE EXPLAINED THE REASONS FOR THE DEVIATION; THE TEMPORARY MAINTENANCE AND CHILD SUPPORT AWARDS WERE VACATED (FIRST DEPT).

The First Department, vacating the award of pendente lite maintenance and child support, determined, because the temporary maintenance deviated from the statutory presumptive award,, the judge should have explained the reasons for the deviation:

To determine temporary maintenance, the motion court was required to apply Domestic Relations Law § 236(B)(5-a). While the court appears to have followed the calculations provided in that section to arrive at a presumptive award of temporary maintenance, it then deviated from the presumptive amount by directing the continued payment of the wife’s rent, cell phone bills, utilities, and other household expenses. This statutory formula is intended to cover all the spouse’s basic living expenses, including housing costs … . Where, as here, there is a deviation, the statute requires the court to explain the reasons for any deviation from the result reached by the formula factors … .

Accordingly, we vacate the pendente lite maintenance award and remand the matter for a reconsideration of the award in light of the directives of Domestic Relations Law § 236(B) (5-a), including the articulation of any other factors the court considers in deviating from the presumptive award …  As the amount of maintenance affects calculation of child support, we further vacate the child support award for recalculation based on the directives of Domestic Relations Law § 240(1-b)(b)(5) (iii)(I) and (vii)(C), which require, for child support purposes, income adjustments based on the amount of maintenance ordered. Severny v Severny, 2022 NY Slip Op 06094, First Dept 11-1-22

Practice Point: Any deviation from the statutory criteria for the calculation of temporary maintenance must be explained. The failure to explain the deviation required the vacation of the both the temporary maintenance and the child support awards.

 

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