New York caps the income used to calculate guideline post-divorce maintenance at a dollar figure the Office of Court Administration adjusts every two years. Spouses on both sides of a high-income divorce frequently misread what that cap does. It limits the formula; it does not limit the court.
The DRL § 236(B)(6) Framework
Post-divorce maintenance in New York is governed by Domestic Relations Law § 236(B)(6). The statute does three things. It sets a formula that produces a presumptive guideline amount of maintenance. It caps the payor's income used in that formula at an indexed figure. And it provides an advisory schedule for duration tied to the length of the marriage.
The guideline formula under DRL § 236(B)(6)(c) runs two calculations and takes the lower of them: (i) 20% of the payor's income minus 25% of the payee's income, and (ii) 40% of the combined income minus the payee's income. The lower figure is the guideline amount, if positive.
The cap enters at DRL § 236(B)(6)(b)(4). The formula applies only to the payor's income up to the statutory cap. On income above the cap, the court has discretion to award additional maintenance after considering the fifteen factors enumerated in § 236(B)(6)(e).
What the Cap Does, and What It Doesn't
The cap is a formula input, not a ceiling. On income up to the cap, the court applies the formula and the presumption that the guideline figure is correct. On income above the cap, the formula stops and the court exercises discretion. The result can be more maintenance than the formula alone would produce, less, or none.
Three practical consequences follow. First, a payor whose income sits above the cap cannot assume the formula caps liability. The court can, and in sustained high-income cases often does, award additional maintenance on income above the cap. Second, a payee whose spouse earns well above the cap should not assume the formula figure is what they will receive. The court may award more, but has to be persuaded on the record. Third, the above-cap analysis is a factor exercise under § 236(B)(6)(e), which rewards the party that develops facts under each factor rather than argues the formula.
The Current Income Cap and Why It Changes
The cap under DRL § 236(B)(6)(b)(4) is indexed every two years to the Consumer Price Index and published by the Office of Court Administration. The adjustment takes effect the first odd-numbered year following publication. The current cap is set out in OCA's published maintenance guidelines, which counsel should consult for the figure in effect at the commencement date of the action.
Because the cap moves on a biennial clock, cases that straddle an adjustment date raise the question of which cap governs. The statute ties the applicable cap to the date the action was commenced, not the date judgment issues. Counsel should confirm the correct figure at the commencement date rather than defaulting to the current OCA table.
The Fifteen Deviation Factors Under § 236(B)(6)(e)
The statute lists fifteen factors the court considers when awarding maintenance on income above the cap or when deviating from the guideline figure. The factors cover the payor's income and property, the length of the marriage, the standard of living established during the marriage, the age and health of the parties, present and future earning capacity, the need of one party to incur training or education expenses, the existence of pre-marital or extramarital child-rearing responsibilities, acts by one party that inhibited or continue to inhibit the other party's earning capacity, exceptional additional expenses for the children, the care of children or stepchildren, tax consequences, the equitable distribution of marital property, contributions to household services or the career of the payor, the wasteful dissipation of marital property, and any other factor the court finds just and proper.
The fifteenth factor is the one that moves high-income cases. The record a party develops under "just and proper" determines where the court lands on above-cap income.
Where the Cap Comes Up in a Negotiated Settlement
In a recent Queens matrimonial matter I handled on the defense side, the payor's W-2 and K-1 income placed him well above the current cap. The plaintiff's opening demand treated the formula figure as a floor and sought a multiplier on the above-cap income. We developed the record under the § 236(B)(6)(e) factors, including the marital standard of living, the equitable distribution package, the plaintiff's demonstrated earning capacity, and the tax consequences of the proposed award. The resolved maintenance figure sat below the plaintiff's opening demand without resort to a formal above-cap deviation argument at trial. The point is procedural, not substantive: the record you develop under § 236(B)(6)(e) is what moves the above-cap number.
Duration: The Advisory Schedule
DRL § 236(B)(6)(f) provides an advisory schedule for the duration of post-divorce maintenance tied to the length of the marriage: 15% to 30% of the length of the marriage for marriages up to and including fifteen years; 30% to 40% for marriages more than fifteen and up to twenty years; and 35% to 50% for marriages more than twenty years. The schedule is advisory, not binding. Courts routinely deviate, up or down, on the same § 236(B)(6)(e) factors.
In practice, courts in Nassau, Queens, and Kings County Supreme have treated the advisory ranges as a starting point in long marriages and have gone outside them where the factors warrant. The parties who prevail on duration are the ones who tie their duration argument back to specific factor evidence, not just the length of the marriage.
Three Common Misunderstandings
First, the cap is not a ceiling on maintenance. It is a ceiling on the income used in the formula. Discretionary awards on above-cap income are permitted and common in high-income cases.
Second, the formula is not a settlement baseline a court is required to approve. Where the parties agree to maintenance below the guideline figure, the court must find that the agreement is reasonable and recite the guideline figure in the judgment under DRL § 236(B)(6)(d). Below-guideline agreements are enforceable, but they are not self-approving.
Third, maintenance interacts with equitable distribution. A larger equitable distribution payment can, and often does, reduce the maintenance award, because the receiving party's post-divorce income and liquidity are factors under § 236(B)(6)(e). The two numbers should be modeled together, not sequentially.
FAQ
Does the New York spousal maintenance cap apply to pre-divorce temporary maintenance?
Yes, but under a parallel statute. Temporary (pendente lite) maintenance is governed by DRL § 236(B)(5-a). The cap concept and the formula structure are similar, but the operative provisions and the deviation factors are set out separately. Confirm you are citing the correct subsection.
Can parties waive the maintenance cap in a prenuptial agreement?
The cap itself is not what parties waive, they waive or modify maintenance entitlement. A prenuptial agreement under DRL § 236(B)(3) that fixes maintenance at a specific figure, formula, or waiver is enforceable if validly executed and not unconscionable at the time of enforcement. Prenups that fix maintenance below the guideline amount are enforceable if the formation and substantive-fairness standards are met.
If my spouse hides income, how does that affect the cap analysis?
The court imputes income under DRL § 236(B)(6)(b)(5) when actual income is understated or unreported. Imputed income is used in both the formula and the above-cap analysis. The imputation inquiry overlaps with equitable distribution and with hidden-asset discovery in high-net-worth matters.
Does the cap change if we settle before trial?
No. The cap is a formula input, not a procedural posture. Settlement agreements may produce a maintenance figure different from the formula result, but the figure the court recites on the record and in the judgment is still measured against the guideline the cap produced. If the agreed figure deviates, the agreement should recite the guideline figure and the reasons for deviation to be enforceable.
Working With Counsel on an Above-Cap Case
High-income divorces in New York are decided on the record a litigator develops under § 236(B)(6)(e), not on the formula. If you are facing a divorce where either spouse's income sits above the maintenance cap, contact Michel Law for a high-net-worth divorce consultation at (516) 440-3440 or schedule online.