During the pendency of a divorce action, if and when a greater monied spouse is required to pay maintenance and/or child support to the lesser monied spouse, any such award must take into account the greater monied spouse’s direct payment of the marital residence and the carrying charges thereon.
It is well settled law that "...shelter costs like food and clothing, inhere in the basic child support obligation", and that to require a support obligor to pay for carrying costs such as a mortgage for the benefit of the party's children in addition to the basic child support obligation constitutes an impermissible 'double shelter allowance'. Lenigan v. Lenigan, 159 A.D.2d 108, 109 (2nd Dep’t 1990). The 'double shelter rule' also extends to other carrying expenses in addition to the mortgage payments and it has repeatedly been held to constitute error to require the payment of both child support and the payment of carrying expenses. "Shelter costs, like food and clothing, inhere in the basic child support obligation and thus, the statute does not contemplate the cost of providing the child's shelter as an ordinary expense to be added to the support obligation." Damon v. Damon, 34 AD.3d 416 (2d Dep’t 2006) See also, Mosso v. Mosso, 84 A.D.3d 757 (2d Dep’t 2011) and Davidman v. Davidman., 948 N.Y.S.2d 639 (2d Dep’t 2012).
The question of how a double shelter credit is calculated is often answered incorrectly. However, in Cohen v. Cohen, 286 A.D.2d 698, 698-699 (2d Dep’t 2001), the Appellate Division, Second Department set forth the appropriate manner in which to prevent double dipping for those expenses paid directly on the payee’s behalf. For a combination of indirect and direct support awards, the Court held that the lower court should subtract the total amount of the annual mortgage and carrying charges paid by a payor from his gross income prior to conducting the Statutory formula. See also, Sicurelli v. Sicurelli, 285 A.D.2d 541 (2d Dep’t 2001; Ryder v. Ryder, 267 A.D.2d 447 (2d Dep’t 1999).
As such, the Statutory calculations for maintenance and child support must first subtract a monied spouse’s payments to third parties on behalf of the lesser monied spouse for a mortgage and carrying charges from his/her income