|
Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|
|---|---|
| Jun 20, 2014 |
committed to rules |
| Jun 16, 2014 |
amended on third reading 7266a |
| May 19, 2014 |
advanced to third reading |
| May 14, 2014 |
2nd report cal. |
| May 13, 2014 |
1st report cal.670 |
| May 08, 2014 |
referred to judiciary |
Senate Bill S7266A
2013-2014 Legislative Session
Provides for the duration and amount payable for temporary and post-divorce maintenance, and spousal support
download bill text pdfSponsored By
(R, C, IP) Senate District
Archive: Last Bill Status - In Senate Committee Rules Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Votes
-
-
May 13, 2014 - Judiciary Committee Vote
S7266A16Aye0Nay6Aye with Reservations0Absent1Excused0Abstained-
-
Judiciary Committee Vote: May 13, 2014
aye (16)aye wr (6)excused (1)
-
-
-
Bill Amendments
co-Sponsors
(D, WF) Senate District
(D, WF) 21st Senate District
(D, IP) Senate District
2013-S7266 - Details
- See Assembly Version of this Bill:
- A9606
- Current Committee:
- Senate Rules
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§236 & 248, Dom Rel L; amd §412, Fam Ct Act
2013-S7266 - Sponsor Memo
BILL NUMBER:S7266
TITLE OF BILL: An act to amend the domestic relations law, in
relation to the duration and amount of maintenance; and to amend the
family court act, in relation to spousal support
PURPOSE OF BILL: To continue taking steps toward reforming the state's
spousal maintenance awards in connection with temporary and final
spousal maintenance awards, providing consistency and predictability
in calculating maintenance awards; and to update spousal support
awards law to mirror the revised provisions for temporary maintenance
awards.
SUMMARY OF PROVISIONS OF BILL:
Section 1. Subdivision 5-a of Part B of section 236 of the Domestic
Relations Law (DRL) as added by chapter 371 of the laws of 2010, is
amended to clarify the calculation of the guideline amount of
temporary maintenance awards and to revise the factors to be
considered to adjust one guideline amount where the court finds the
guideline amount is unjust or inappropriate. This section also reduces
the income cap from $500,000 to $300,000.
Section 2. Subdivision 6 of part B of section 236 of the DRL, as
amended by chapter 371 of the laws of 2010, is amended to provide, in
determining post-divorce maintenance, provisions that track the
provisions for determining temporary maintenance. This section also provides for the guideline duration of post-divorce maintenance. Section 3. Subparagraph 1 of paragraph b of subdivision 9 of Part B of section 236 of the DRL, as amended by chapter 182 of the laws of 2010, is amended to provide that a court may annul or modify a prior order or judgment for maintenance upon a showing of a substantial change in circumstances, including remarriage of the payee if the remarriage results in a substantial change in financial circumstances, and actual retirement of the payor if the retirement results in substantial change in financial circumstances. Section 4. Section 412 of the Family Court Act, as amended by chapter 231 of the laws of 1960, is amended to mirror the provisions of temporary maintenance set forth in subdivision 5-a of Part B of section 236 of the DRL. Section 5. Paragraph a of subdivision 1 of part B of section 236 of the DRL, as amended by chapter 371 of the laws of 2010, is amended to replace "recipient" of maintenance to "payee." Section 6. Subparagraph 7 of paragraph d of subdivision 5 of Part B of section 236 of the DRL, as amended by chapter 281 of the laws of 1980 and as renumbered by chapter 229 of the laws of 2009, is amended to provide that in determining an equitable disposition of property pursuant to subdivision 5(c) of Part B of section 236 of the DRL, the court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, the court, in arriving at an equitable division of marital property, shall consider the direct or indirect contributions, to the development during the marriage of the enhanced earning capacity of the other spouse. Section 7. Section 248 of the DRL is amended to replace language referencing "husband" and "wife" to "spouse," "payor," and "payee." Section 8. Effective Date. JUSTIFICATION: This bill completes reforms of New York divorce laws that started in 2010 with the adoption of standards for temporary maintenance similar to the standards used for child support. The bill makes several changes to current law. First, it amends the provisions for temporary maintenance enacted in 2010 by lowering the provision's income cap and by making technical and clarifying amendments, including restating in simpler language the method for calculating the temporary maintenance guideline amount. Second, the bill adopts maintenance standards for post-divorce maintenance awards similar to those for temporary maintenance awards. Third, the bill provides increased guidance to courts hearing motions to modify maintenance awards by clarifying that a substantial change in circumstances includes financial hardship, remarriage of the payee if remarriage results in a substantial change in financial circumstances, and actual retirement of the payor if retirement results in a substantial change in financial circumstances. Fourth, the bill extends the concept of guidelines to the Family Court Act's provisions for spousal support. Fifth, within the context of comprehensive legislation providing for post-divorce maintenance guidelines, the bill eliminates increased earning capacity from consideration in the distribution of marital assets. And, sixth, the bill conforms other portions of the Domestic Relations Law to make them consistent with the bill's provisions for post-divorce maintenance. In 2010, New York State adopted standards for temporary maintenance similar to the standards for child support in the Child Support Standards Act in use since 1989. This reform was a response to serious concerns about the ability of the State's then existing spousal maintenance provisions to produce equitable results. Spousal maintenance awards at the time were inconsistent and unpredictable, creating questions about the fairness of awards and discouraging settlements. Litigation to establish maintenance was lengthy and complex. For parties who could not afford protracted litigation, maintenance was an illusory remedy. The 2010 reforms began the process of incorporating into provisions for spousal maintenance the concept of marriage as an economic Partnership, an idea that New York State adopted for equitable distribution in 1980. Divorce remedies that look to the economic Partnership premise base maintenance on the recognition that parties make different contributions to a marriage, that only some of those contributions are financial, and that some contributions. Particularly those of caring for children and a household, diminish post-divorce earning prospects. As stated in the justification for the 2010 temporary maintenance legislation, a commission of the American Academy of Matrimonial Lawyers (AAML Commission) noted that various jurisdictions had adopted a formula approach to determining spousal support. The AAML Commission recommended use of a formula based on two universal factors, the income of the parties and the length of the marriage. Additionally, the American Law Institute, in "Principles of the Law of Family Dissolution; Analysis and Recommendations" (2000) of the American Law Institute (ALI Principles) identified economic losses that spouses suffer at the end of marriage. These losses often take the form of lower earning capacity for spouses who are primary caretakers of children. The ALI Principles suggest that these losses be shared through a formula for determining post-marital spousal support that takes into account the incomes of the parties and the length of the marriage. The 2010 temporary maintenance law provided not just consistency but flexibility through provisions allowing the court to adjust guideline amounts up or down when numbers produced by the formula were inappropriate or unjust. Also, the law provided a list of factors for the court to consider when making adjustments and required courts to provide written explanations for their justifications. Attorneys representing low and middle income parties report that clients, who in spite of great need would have been unable to undertake the litigation necessary for a maintenance award under the vague provisions of the previous law, have been receiving temporary maintenance as a result of the law enacted in 2010. These awards are the result of judicial rulings under the new law and, equally importantly, of settlements informed by clear standards allowing lawyers to predict litigation outcomes. Courts have taken advantage of the provisions providing flexibility and have adjusted awards when necessary for equity in particular cases. Dozens of decisions have been published. The 2010 law also directed the New York State Law Revision Commission (LRC) to, among other things "review the maintenance laws of the State, including the way in which they are administered to determine the impact of these laws on post marital economic disparities and the effectiveness of such laws and their administration in achieving the state's policy goals and objectives of ensure that the economic consequences or a divorce are fairly and equitably shared by the divorcing couple." (Sec. 3 of Chapter 371 of the Laws of 2010.) The LRC issued its final report on May 15, 2013 of its findings, conclusions and recommendations (the LRC Report). The LRC Report, among other things, recommended that the mathematical formula set forth in the 2010 law for the calculation of the guideline amount of temporary maintenance be continued and that a mathematical formula be similarly used to calculate the guideline amount of post-divorce maintenance, with consideration by the court of a set of factors to determine whether the guideline amount of post-divorce maintenance should be increased where the parties' income exceeds the income cap. The LRC also recommended that the provisions providing for spousal support in Family Court proceedings be amended to mirror the temporary maintenance law, revised as recommended by the LRC. This bill incorporates many of the recommendations set forth in the LRC Report. Section one of this bill makes small adjustments that refine, clarify, and streamline the current temporary maintenance standards law. The provisions for calculating the formula amount have been simplified. Factors for judges to consider when adjusting awards have been condensed and clarified, and factors inapplicable to temporary maintenance removed. Provisions confirming judicial practice, concerning allocation of responsibility for family expenses and the independence of decisions on temporary and cost-divorce maintenance, have been added. The bill retains provisions for courts to consider the length of marriage in setting the duration of maintenance so that judges hearing cases involving short-term marriage may terminate maintenance before the divorce is final. And, last, the bill lowers the income cap used in temporary maintenance provisions from $500,000 to $300,000. The $300,000 cap takes into account the high cost of litigating a right to maintenance without the kind of simplified method provided for families by maintenance guidelines. This cost is sufficiently high so that only the wealthiest divorcing spouses can afford to litigate maintenance. Section two of this bill extends the benefits of the temporary maintenance provisions to post-divorce maintenance awards. Post-divorce maintenance awards remain the "wild card" in divorce litigation. Awards are still inconsistent and unpredictable, and lengthy, expensive litigation is still necessary to achieve equitable results. Using guidelines based on a formula with flexibility for adjustments up and down for final maintenance will change this. Much of the second section of the bill tracks the language of the temporary maintenance law, including the restated and clarified provisions set forth in this bill for calculating the guideline amount of a temporary maintenance award. The major differences between the temporary and post-divorce maintenance provisions are the provisions on duration. Temporary maintenance usually lasts until a legal case concludes with a final judgment of divorce, except where courts terminate temporary maintenance prior to the divorce becoming final based on consideration of the length of marriage as mentioned above. Post-divorce maintenance needs its own clear end point, and this bill proscribes a duration calculated as a percent of the length of the marriage. Like the recommendations on duration in the AAML Commission and the ALI Principles, the longer the marriage, the longer the time post-divorce maintenance will be paid. The bill also provides that maintenance payments will end on the death of either party. Section three of this bill amends New York's divorce laws to provide guidance for the court in deciding applications for modification of maintenance awards. it specifies that a substantial change in circumstances includes remarriage of the payee spouse but only when the remarriage results in a substantial change in the payee's financial circumstances, and the actual retirement of the payer but only when retirement results in a substantial change in the payor's financial circumstances, in addition to financial hardship. While remarriage does not necessarily improve financial status, remarriage in some cases may better significantly the financial standing of the payee spouse. When it does, this section allows a judge to modify an earlier order. Just as remarriage does not necessarily improve the financial status of a payee spouse, retirement does not necessarily worsen the financial outlook of a payor spouse. Retirement has become a fluid concept. People commonly work beyond traditional or social security retirement ages, and many who retire from one job find other employment, either full-time or part-time. Judges can make fair determinations about modifications only by examining the changed financial status upon actual retirement, not by speculating or making assumptions about future retirement. Section four of the bill adopts the guideline approach to spousal support proceedings brought in Family Court. The bill's spousal support provisions closely track provisions for temporary maintenance and make available to vulnerable spouses the same kind consistent, predictable results that maintenance guidelines provide to divorcing couples. Section six amends the Domestic Relations Law to eliminate a form of marital property, enhanced earning capacity, recognized by the Court of Appeals in O'Brien v O'Brien, 66 NY 2d 576 (1985). Two essential elements of the post-divorce guideline provisions of this bill make possible the elimination of the treatment of enhanced earning capacity as marital assets. First, the formula used in the bill's post-divorce maintenance provisions is based on a rough assessment of future earnings, i.e. current earning capacity, while provisions for adjusting the guideline obligation allow judges to fine-tune the initial assessments about what spouses are likely to earn post-divorce. Second, the provisions for post-marital maintenance in this bill, like obligations created in equitable distribution provisions, allow for payments regardless of whether or not the recipient remarries. Only if maintenance is calculated through use of guidelines for both amount and duration and only if maintenance payments may continue after remarriage can maintenance substitute for treating enhanced earning capacity as a marital asset. To eliminate enhanced earning capacity as a marital asset without these critical reforms to our maintenance laws would be a great in justice to spouses who have sacrificed their education and/or careers for the benefit of the marital partnership. Section seven amends the Domestic Relation Law relating to applications made to the court by a spouse when their former spouse is cohabitating with another person and is holding themselves out as a spouse of that person. This section changes the language from "wife" and "husband" to "spouse." Currently, the law assumes the wife is the party cohabitating and being paid maintenance, and the husband is making the application to the court for a change in maintenance paid. LEGISLATIVE HISTORY: This is a new bill. FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None. EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall become a law.
2013-S7266 - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
7266
I N S E N A T E
May 8, 2014
___________
Introduced by Sens. BONACIC, HASSELL-THOMPSON -- read twice and ordered
printed, and when printed to be committed to the Committee on Judici-
ary
AN ACT to amend the domestic relations law, in relation to the duration
and amount of maintenance; and to amend the family court act, in
relation to spousal support
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 5-a of part B of section 236 of the domestic
relations law, as added by chapter 371 of the laws of 2010, is amended
to read as follows:
5-a. Temporary maintenance awards. a. Except where the parties have
entered into an agreement pursuant to subdivision three of this part
providing for maintenance, in any matrimonial action the court shall
make its award for temporary maintenance pursuant to the provisions of
this subdivision.
b. For purposes of this subdivision, the following definitions shall
be used:
(1) "Payor" shall mean the spouse with the higher income.
(2) "Payee" shall mean the spouse with the lower income.
(3) "Length of marriage" shall mean the period from the date of
marriage until the date of commencement of action.
(4) "Income" shall mean[:
(a)] income as defined in the child support standards act and codified
in section two hundred forty of this article and section four hundred
thirteen of the family court act[; and
(b) income from income producing property to be distributed pursuant
to subdivision five of this part].
(5) "Income cap" shall mean up to and including [five] THREE hundred
thousand dollars of the payor's annual income; provided, however, begin-
ning January thirty-first, two thousand [twelve] SIXTEEN and every two
years thereafter, the [payor's annual] income CAP amount shall increase
by the [product] SUM of the average annual percentage changes in the
consumer price index for all urban consumers (CPI-U) as published by the
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15051-01-4
S. 7266 2
United States department of labor bureau of labor statistics for the
PRIOR two [year period] YEARS MULTIPLIED BY THE CURRENT PAYOR'S ANNUAL
INCOME AMOUNT AND THEN rounded to the nearest one thousand dollars. The
office of court administration shall determine and publish the income
cap.
(6) "Guideline amount of temporary maintenance" shall mean the [sum]
DOLLAR AMOUNT derived by the application of paragraph c OR D of this
subdivision.
(7) ["Guideline duration" shall mean the durational period determined
by the application of paragraph d of this subdivision.
(8) "Presumptive award" shall mean the guideline amount of the tempo-
rary maintenance award for the guideline duration prior to the court's
application of any adjustment factors as provided in subparagraph one of
paragraph e of this subdivision.
(9)] "Self-support reserve" shall mean the self-support reserve as
defined in the child support standards act and codified in section two
hundred forty of this article and section four hundred thirteen of the
family court act.
c. [The court shall determine the guideline amount of temporary main-
tenance in accordance with the provisions of this paragraph after deter-
mining the income of the parties:
(1) Where the payor's income is up to and including the income cap:
(a) the court shall subtract twenty percent of the income of the payee
from thirty percent of the income up to the income cap of the payor.
(b) the court shall then multiply the sum of the payor's income up to
and including the income cap and all of the payee's income by forty
percent.
(c) the court shall subtract the income of the payee from the amount
derived from clause (b) of this subparagraph.
(d) the guideline amount of temporary maintenance shall be the lower
of the amounts determined by clauses (a) and (c) of this subparagraph;
if the amount determined by clause (c) of this subparagraph is less than
or equal to zero, the guideline amount shall be zero dollars.
(2) Where the income of the payor exceeds the income cap:
(a) the court shall determine the guideline amount of temporary main-
tenance for that portion of the payor's income that is up to and includ-
ing the income cap according to subparagraph one of this paragraph, and,
for the payor's income in excess of the income cap, the court shall
determine any additional guideline amount of temporary maintenance
through consideration of the following factors:
(i) the length of the marriage;
(ii) the substantial differences in the incomes of the parties;
(iii) the standard of living of the parties established during the
marriage;
(iv) the age and health of the parties;
(v) the present and future earning capacity of the parties;
(vi) the need of one party to incur education or training expenses;
(vii) the wasteful dissipation of marital property;
(viii) the transfer or encumbrance made in contemplation of a matrimo-
nial action without fair consideration;
(ix) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(x) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
S. 7266 3
violence as provided in section four hundred fifty-nine-a of the social
services law;
(xi) the availability and cost of medical insurance for the parties;
(xii) the care of the children or stepchildren, disabled adult chil-
dren or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity or ability to obtain
meaningful employment;
(xiii) the inability of one party to obtain meaningful employment due
to age or absence from the workforce;
(xiv) the need to pay for exceptional additional expenses for the
child or children, including, but not limited to, schooling, day care
and medical treatment;
(xv) the tax consequences to each party;
(xvi) marital property subject to distribution pursuant to subdivision
five of this part;
(xvii) the reduced or lost earning capacity of the party seeking
temporary maintenance as a result of having foregone or delayed educa-
tion, training, employment or career opportunities during the marriage;
(xviii) the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and
(xix) any other factor which the court shall expressly find to be just
and proper.
(b)] WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME
CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
NANCE AS FOLLOWS:
(1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
(2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
(4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
GRAPHS ONE AND THREE OF THIS PARAGRAPH.
(5) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE AMOUNT
DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF THE
AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR
EQUAL TO ZERO, THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE
ZERO DOLLARS.
D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE AS FOLLOWS:
(1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
INCOMES OF PAYOR AND PAYEE.
(2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE
INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
PAYEE.
(3) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE EITHER:
(A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
OR
(B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH H OF THIS SUBDIVISION.
(4) In any decision made pursuant to CLAUSE (B) OF SUBPARAGRAPH THREE
OF this [subparagraph] PARAGRAPH, the court shall set forth the factors
S. 7266 4
it considered and the reasons for its decision IN WRITING. Such written
[order] DECISION may not be waived by either party or counsel.
[(3)] E. Notwithstanding the provisions of this [paragraph] SUBDIVI-
SION, where the guideline amount of temporary maintenance would reduce
the payor's income below the self-support reserve for a single person,
[the presumptive amount of] the guideline amount of temporary mainte-
nance shall be the difference between the payor's income and the self-
support reserve. If the payor's income is below the self-support
reserve, there is a rebuttable presumption that no temporary maintenance
is awarded.
[d.] F. The court shall determine the [guideline] duration of tempo-
rary maintenance by considering the length of the marriage.
G. Temporary maintenance shall terminate upon the issuance of the
[final award] DETERMINATION of POST-DIVORCE maintenance or the death of
either party, whichever occurs first.
[e.] H. (1) The court shall order the [presumptive award] GUIDELINE
AMOUNT of temporary maintenance in accordance with paragraphs c and d of
this subdivision, unless the court finds that the [presumptive award]
GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE is unjust or inappropriate and
adjusts the [presumptive award] GUIDELINE AMOUNT of temporary mainte-
nance accordingly based upon consideration of the following factors:
(a) [the standard of living of the parties established during the
marriage;
(b)] the age and health of the parties;
[(c)] (B) the PRESENT OR FUTURE earning capacity of the parties,
INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
[(d)] (C) the need of one party to incur education or training
expenses;
[(e)] (D) the wasteful dissipation of marital property[;
(f) the transfer] , INCLUDING TRANSFERS or [encumbrance] ENCUMBRANCES
made in contemplation of a matrimonial action without fair consider-
ation;
[(g)] (E) the existence and duration of a pre-marital joint household
or a pre-divorce separate household;
[(h)] (F) acts by one party against another that have inhibited or
continue to inhibit a party's earning capacity or ability to obtain
meaningful employment. Such acts include but are not limited to acts of
domestic violence as provided in section four hundred fifty-nine-a of
the social services law;
[(i)] (G) the availability and cost of medical insurance for the
parties;
[(j)] (H) the care of [the] children or stepchildren, disabled adult
children or stepchildren, elderly parents or in-laws PROVIDED DURING THE
MARRIAGE that [has inhibited or continues to inhibit] INHIBITS a party's
earning capacity [or ability to obtain meaningful employment];
[(k) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
(l)] (I) the need to pay for exceptional additional expenses for the
child or children NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT
PURSUANT TO THE CHILD SUPPORT STANDARDS ACT, including, but not limited
to, schooling, day care and medical treatment;
[(m)] (J) the tax consequences to each party;
(K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
[(n) marital property subject to distribution pursuant to subdivision
five of this part;
S. 7266 5
(o)] (L) the reduced or lost earning capacity of the [party seeking
temporary maintenance] PAYEE as a result of having foregone or delayed
education, training, employment or career opportunities during the
marriage;
[(p) the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker and to the
career or career potential of the other party;] and
[(q)] (M) any other factor which the court shall expressly find to be
just and proper.
(2) Where the court finds that the [presumptive award] GUIDELINE
AMOUNT of temporary maintenance is unjust or inappropriate and the court
adjusts the [presumptive award] GUIDELINE AMOUNT of temporary mainte-
nance pursuant to this paragraph, the court shall set forth, in a writ-
ten [order] DECISION, the [amount of the unadjusted presumptive award]
GUIDELINE AMOUNT of temporary maintenance, the factors it considered,
and the reasons that the court adjusted the [presumptive award] GUIDE-
LINE AMOUNT of temporary maintenance. Such written [order] DECISION
shall not be waived by either party or counsel.
(3) Where either or both parties are unrepresented, the court shall
not enter a temporary maintenance order unless the COURT INFORMS THE
unrepresented party or parties [have been informed] of the [presumptive
award] GUIDELINE AMOUNT of temporary maintenance.
[f. A validly executed agreement or stipulation voluntarily entered
into between the parties in an action commenced after the effective date
of this subdivision presented to the court for incorporation in an order
shall include a provision stating that the parties have been advised of
the provisions of this subdivision, and that the presumptive award
provided for therein results in the correct amount of temporary mainte-
nance. In the event that such agreement or stipulation deviates from the
presumptive award of temporary maintenance, the agreement or stipulation
must specify the amount that such presumptive award of temporary mainte-
nance would have been and the reason or reasons that such agreement or
stipulation does not provide for payment of that amount. Such provision
may not be waived by either party or counsel. Nothing contained in this
subdivision shall be construed to alter the rights of the parties to
voluntarily enter into validly executed agreements or stipulations which
deviate from the presumptive award of temporary maintenance provided
such agreements or stipulations comply with the provisions of this
subdivision. The court shall, however, retain discretion with respect to
temporary, and post-divorce maintenance awards pursuant to this section.
Any court order incorporating a validly executed agreement or stipu-
lation which deviates from the presumptive award of temporary mainte-
nance shall set forth the court's reasons for such deviation.
g.] I. When a party has defaulted and/or the court is otherwise
presented with insufficient evidence to determine [gross] income, the
court shall order the temporary maintenance award based upon the needs
of the payee or the standard of living of the parties prior to commence-
ment of the divorce action, whichever is greater. Such order may be
retroactively modified upward without a showing of change in circum-
stances upon a showing of newly discovered or obtained evidence.
[h.] J. In any action or proceeding for modification of an order of
maintenance or alimony existing prior to the effective date of this
subdivision, brought pursuant to this article, the temporary maintenance
guidelines set forth in this subdivision shall not constitute a change
of circumstances warranting modification of such support order.
S. 7266 6
[i. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in this subdivision.]
K. THE COURT MAY ALLOCATE THE RESPONSIBILITIES OF THE RESPECTIVE
SPOUSES FOR THE FAMILY'S EXPENSES DURING THE PENDENCY OF THE PROCEEDING.
L. THE TEMPORARY MAINTENANCE ORDER SHALL NOT PREJUDICE THE RIGHTS OF
EITHER PARTY REGARDING A POST-DIVORCE MAINTENANCE AWARD.
S 2. Subdivision 6 of part B of section 236 of the domestic relations
law, as amended by chapter 371 of the laws of 2010, is amended to read
as follows:
6. Post-divorce maintenance awards. a. Except where the parties have
entered into an agreement pursuant to subdivision three of this part
providing for maintenance, in any matrimonial action the court [may
order maintenance in such amount as justice requires, having regard for
the standard of living of the parties established during the marriage,
whether the party in whose favor maintenance is granted lacks sufficient
property and income to provide for his or her reasonable needs and
whether the other party has sufficient property or income to provide for
the reasonable needs of the other and the circumstances of the case and
of the respective parties. Such order shall be effective as of the date
of the application therefor, and any retroactive amount of maintenance
due shall be paid in one sum or periodic sums, as the court shall
direct, taking into account any amount of temporary maintenance which
has been paid. In determining the amount and duration of maintenance the
court shall consider:
(1) the income and property of the respective parties including mari-
tal property distributed pursuant to subdivision five of this part;
(2) the length of the marriage;
(3) the age and health of both parties;
(4) the present and future earning capacity of both parties;
(5) the need of one party to incur education or training expenses;
(6) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(7) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(8) the ability of the party seeking maintenance to become self-sup-
porting and, if applicable, the period of time and training necessary
therefor;
(9) reduced or lost lifetime earning capacity of the party seeking
maintenance as a result of having foregone or delayed education, train-
ing, employment, or career opportunities during the marriage;
(10) the presence of children of the marriage in the respective homes
of the parties;
(11) the care of the children or stepchildren, disabled adult children
or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity;
(12) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
(13) the need to pay for exceptional additional expenses for the
child/children, including but not limited to, schooling, day care and
medical treatment;
(14) the tax consequences to each party;
S. 7266 7
(15) the equitable distribution of marital property;
(16) contributions and services of the party seeking maintenance as a
spouse, parent, wage earner and homemaker, and to the career or career
potential of the other party;
(17) the wasteful dissipation of marital property by either spouse;
(18) the transfer or encumbrance made in contemplation of a matrimoni-
al action without fair consideration;
(19) the loss of health insurance benefits upon dissolution of the
marriage, and the availability and cost of medical insurance for the
parties; and
(20) any other factor which the court shall expressly find to be just
and proper] SHALL MAKE ITS AWARD FOR POST-DIVORCE MAINTENANCE PURSUANT
TO THE PROVISIONS OF THIS SUBDIVISION.
b. [In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
c. The court may award permanent maintenance, but an award of mainte-
nance shall terminate upon the death of either party or upon the recipi-
ent's valid or invalid marriage, or upon modification pursuant to para-
graph b of subdivision nine of this part or section two hundred
forty-eight of this chapter.
d. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph a of this subdivision.]
FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL BE
USED:
(1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
(2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
(3) "INCOME" SHALL MEAN:
(A) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
THIRTEEN OF THE FAMILY COURT ACT, EXCEPT THAT TEMPORARY MAINTENANCE PAID
PURSUANT TO SUBDIVISION FIVE-A OF THIS PART AND SPOUSAL SUPPORT PAID
PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT ACT, SHALL
NOT BE DEDUCTED FROM PAYOR'S INCOME; AND
(B) INCOME FROM INCOME-PRODUCING PROPERTY DISTRIBUTED OR TO BE
DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
(4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY TWO YEARS THEREAFTER,
THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF THE AVERAGE ANNUAL
PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS
(CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU OF
LABOR STATISTICS FOR THE PRIOR TWO YEARS MULTIPLIED BY THE CURRENT
PAYOR'S ANNUAL INCOME AMOUNT AND THEN ROUNDED TO THE NEAREST ONE THOU-
SAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
(5) "GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
DOLLAR AMOUNT DERIVED BY THE APPLICATION OF PARAGRAPH C OR D OF THIS
SUBDIVISION.
(6) "GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
DURATIONAL PERIOD DETERMINED BY THE APPLICATION OF PARAGRAPH E OF THIS
SUBDIVISION.
S. 7266 8
(7) "POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION" SHALL MEAN THE
GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE DURATION
OF POST-DIVORCE MAINTENANCE.
(8) "LENGTH OF MARRIAGE" SHALL MEAN THE PERIOD FROM THE DATE OF
MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
(9) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS
DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
FAMILY COURT ACT.
C. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTE-
NANCE AS FOLLOWS:
(1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
(2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
(4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
GRAPHS ONE AND THREE OF THIS PARAGRAPH.
(5) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE
AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF
THE AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS
THAN OR EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE
SHALL BE ZERO DOLLARS.
(6) NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, WHERE THE
GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE WOULD REDUCE THE PAYOR'S
INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE DIFFERENCE BETWEEN THE
PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS
BELOW THE SELF-SUPPORT RESERVE, THERE IS A REBUTTABLE PRESUMPTION THAT
NO POST-DIVORCE MAINTENANCE IS AWARDED.
D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AS FOLLOWS:
(1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
INCOMES OF PAYOR AND PAYEE.
(2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE
INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
PAYEE.
(3) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE EITHER:
(A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
OR
(B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH F OF THIS SUBDIVISION.
(4) IN ANY DECISION MADE PURSUANT TO CLAUSE (B) OF SUBPARAGRAPH THREE
OF THIS PARAGRAPH, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED
AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN DECISION MAY
NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
E. THE GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE SHALL BE DETER-
MINED AS FOLLOWS:
(1) THE COURT SHALL DETERMINE THE GUIDELINE DURATION OF POST-DIVORCE
MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:
LENGTH OF THE MARRIAGE PERCENT OF THE LENGTH
S. 7266 9
OF THE MARRIAGE FOR WHICH
MAINTENANCE WILL BE PAYABLE
0 UP TO AND INCLUDING 5 YEARS 30%
MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS 40%
MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS 50%
MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS 60%
MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS 70%
MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS 80%
MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS 90%
MORE THAN 20, UP TO AND INCLUDING 25 YEARS 100%
MORE THAN 25 YEARS NONDURATIONAL
(2) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARA-
GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE DEATH OF THE
PAYOR OR PAYEE OR UPON THE PAYEE'S VALID OR INVALID MARRIAGE.
F. (1) THE COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION IN ACCORDANCE WITH PARAGRAPHS C, D AND E OF THIS SUBDIVISION,
UNLESS THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
GATION IS UNJUST OR INAPPROPRIATE AND ADJUSTS THE POST-DIVORCE MAINTE-
NANCE GUIDELINE OBLIGATION ACCORDINGLY BASED UPON CONSIDERATION OF THE
FOLLOWING FACTORS:
(A) THE AGE AND HEALTH OF THE PARTIES;
(B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING
THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
(C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
(D) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES MADE IN CONTEMPLATION OF A MATRIMONIAL ACTION WITHOUT
FAIR CONSIDERATION;
(E) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
(F) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
(G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
(H) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
(I) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD
OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
TO THE CHILD SUPPORT STANDARDS ACT, INCLUDING, BUT NOT LIMITED TO,
SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
(J) THE TAX CONSEQUENCES TO EACH PARTY;
(K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
(L) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
HAVING FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE;
(M) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY;
(N) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE
OTHER PARTY; AND
(O) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
(2) WHERE THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE POST-DI-
S. 7266 10
VORCE MAINTENANCE GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE
COURT SHALL SET FORTH, IN A WRITTEN DECISION, THE UNADJUSTED POST-DI-
VORCE MAINTENANCE GUIDELINE OBLIGATION, THE FACTORS IT CONSIDERED, AND
THE REASONS THAT THE COURT ADJUSTED THE POST-DIVORCE MAINTENANCE OBLI-
GATION. SUCH WRITTEN DECISION SHALL NOT BE WAIVED BY EITHER PARTY OR
COUNSEL.
G. WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT
ENTER A MAINTENANCE ORDER OR JUDGMENT UNLESS THE COURT INFORMS THE
UNREPRESENTED PARTY OR PARTIES OF THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION.
H. A VALIDLY EXECUTED AGREEMENT OR STIPULATION VOLUNTARILY ENTERED
INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE
OF THE CHAPTER OF THE LAWS OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS
SUBDIVISION PRESENTED TO THE COURT FOR INCORPORATION IN AN ORDER OR
JUDGMENT SHALL INCLUDE A PROVISION STATING THAT THE PARTIES HAVE BEEN
ADVISED OF THE PROVISIONS OF THIS SUBDIVISION, AND THAT THE POST-DIVORCE
MAINTENANCE GUIDELINE OBLIGATION PROVIDED FOR THEREIN WOULD PRESUMPTIVE-
LY RESULT IN THE CORRECT AMOUNT OF POST-DIVORCE MAINTENANCE. IN THE
EVENT THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE
MAINTENANCE GUIDELINE OBLIGATION, THE AGREEMENT OR STIPULATION MUST
SPECIFY THE AMOUNT THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
GATION WOULD HAVE BEEN AND THE REASON OR REASONS THAT SUCH AGREEMENT OR
STIPULATION DOES NOT PROVIDE FOR PAYMENT OF THAT AMOUNT. SUCH PROVISION
MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL. NOTHING CONTAINED IN THIS
SUBDIVISION SHALL BE CONSTRUED TO ALTER THE RIGHTS OF THE PARTIES TO
VOLUNTARILY ENTER INTO VALIDLY EXECUTED AGREEMENTS OR STIPULATIONS WHICH
DEVIATE FROM THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION PROVIDED
SUCH AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS
SUBDIVISION. ANY COURT ORDER INCORPORATING A VALIDLY EXECUTED AGREEMENT
OR STIPULATION WHICH DEVIATES FROM THE POST-DIVORCE MAINTENANCE GUIDE-
LINE OBLIGATION SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION.
I. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER
THE POST-DIVORCE MAINTENANCE BASED UPON THE NEEDS OF THE PAYEE OR THE
STANDARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE DIVORCE
ACTION, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROACTIVELY MODIFIED
UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON A SHOWING OF
NEWLY DISCOVERED OR OBTAINED EVIDENCE.
J. POST-DIVORCE MAINTENANCE MAY BE MODIFIED PURSUANT TO PARAGRAPH B OF
SUBDIVISION NINE OF THIS PART.
K. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF
THE LAWS OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS SUBDIVISION,
BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN-
TENANCE SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF
CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF
THE LAWS OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS SUBDIVISION,
BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN-
TENANCE SET FORTH IN PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL
APPLY.
M. IN ANY DECISION MADE PURSUANT TO THIS SUBDIVISION THE COURT SHALL,
WHERE APPROPRIATE, CONSIDER THE EFFECT OF A BARRIER TO REMARRIAGE, AS
DEFINED IN SUBDIVISION SIX OF SECTION TWO HUNDRED FIFTY-THREE OF THIS
ARTICLE, ON THE FACTORS ENUMERATED IN PARAGRAPH F OF THIS SUBDIVISION.
S. 7266 11
S 3. Subparagraph 1 of paragraph b of subdivision 9 of part B of
section 236 of the domestic relations law, as amended by chapter 182 of
the laws of 2010, is amended to read as follows:
(1) Upon application by either party, the court may annul or modify
any prior order or judgment as to maintenance, upon a showing of the
[recipient's] PAYEE'S inability to be self-supporting or a substantial
change in circumstance or termination of child support awarded pursuant
to section two hundred forty of this article, including financial hard-
ship. Where, after the effective date of this part, a separation agree-
ment remains in force no modification of a prior order or judgment
incorporating the terms of said agreement shall be made as to mainte-
nance without a showing of extreme hardship on either party, in which
event the judgment or order as modified shall supersede the terms of the
prior agreement and judgment for such period of time and under such
circumstances as the court determines. The court shall not reduce or
annul any arrears of maintenance which have been reduced to final judg-
ment pursuant to section two hundred forty-four of this article. No
other arrears of maintenance which have accrued prior to the making of
such application shall be subject to modification or annulment unless
the defaulting party shows good cause for failure to make application
for relief from the judgment or order directing such payment prior to
the accrual of such arrears and the facts and circumstances constituting
good cause are set forth in a written memorandum of decision. Such
modification may increase maintenance nunc pro tunc as of the date of
application based on newly discovered evidence. Any retroactive amount
of maintenance due shall, except as provided for herein, be paid in one
sum or periodic sums, as the court directs, taking into account any
temporary or partial payments which have been made. The provisions of
this subdivision shall not apply to a separation agreement made prior to
the effective date of this part.
S 4. Section 412 of the family court act, as amended by chapter 281 of
the laws of 1980, is amended to read as follows:
S 412. Married person's duty to support spouse. 1. A married person is
chargeable with the support of his or her spouse and, [if possessed of
sufficient means or able to earn such means, may be required to pay for
his or her support a fair and reasonable sum, as the court may deter-
mine, having due regard to the circumstances of the respective parties.]
EXCEPT WHERE THE PARTIES HAVE ENTERED INTO AN AGREEMENT PURSUANT TO
SECTION FOUR HUNDRED TWENTY-FIVE OF THIS ARTICLE PROVIDING FOR SUPPORT,
THE COURT SHALL MAKE ITS AWARD FOR SPOUSAL SUPPORT PURSUANT TO THE
PROVISIONS OF THIS PART.
2. FOR PURPOSES OF THIS SECTION, THE FOLLOWING DEFINITIONS SHALL BE
USED:
(A) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
(B) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
(C) "INCOME" SHALL MEAN INCOME AS DEFINED IN THE CHILD SUPPORT STAND-
ARDS ACT AND CODIFIED IN SECTION TWO HUNDRED FORTY OF THE DOMESTIC
RELATIONS LAW AND SECTION FOUR HUNDRED THIRTEEN OF THIS PART.
(D) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY TWO YEARS THEREAFTER,
THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF THE AVERAGE ANNUAL
PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS
(CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU OF
LABOR STATISTICS FOR THE PRIOR TWO YEARS MULTIPLIED BY THE CURRENT
PAYOR'S ANNUAL INCOME AMOUNT AND THEN ROUNDED TO THE NEAREST ONE THOU-
S. 7266 12
SAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
(E) "GUIDELINE AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED
BY THE APPLICATION OF SUBDIVISION THREE OR FOUR OF THIS SECTION.
(F) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS
DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW AND SECTION FOUR HUNDRED
THIRTEEN OF THIS PART.
3. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS
FOLLOWS:
(A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
(B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(C) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM PARAGRAPH (B) OF THIS SUBDIVISION.
(D) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY PARA-
GRAPHS (A) AND (C) OF THIS SUBDIVISION.
(E) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
MINED BY PARAGRAPH (D) OF THIS SUBDIVISION EXCEPT THAT, IF THE AMOUNT
DETERMINED BY PARAGRAPH (D) OF THIS SUBDIVISION IS LESS THAN OR EQUAL TO
ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
4. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS:
(A) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
(A) THROUGH (D) OF SUBDIVISION THREE OF THIS SECTION FOR THE TOTAL
INCOMES OF PAYOR AND PAYEE.
(B) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
(A) THROUGH (D) OF SUBDIVISION THREE OF THIS SECTION FOR THE INCOME OF
PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE.
(C) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE EITHER:
(1) THE CALCULATION DERIVED FROM PARAGRAPH (A) OF THIS SUBDIVISION; OR
(2) THE AMOUNT DERIVED FROM PARAGRAPH (B) OF THIS SUBDIVISION PLUS AN
AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
SET FORTH IN PARAGRAPH (A) OF SUBDIVISION SIX OF THIS SECTION.
(D) IN ANY DECISION MADE PURSUANT TO SUBPARAGRAPH TWO OF PARAGRAPH (C)
OF THIS SUBDIVISION, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED
AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN DECISION MAY
NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
5. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WHERE THE GUIDELINE
AMOUNT OF SPOUSAL SUPPORT WOULD REDUCE THE PAYOR'S INCOME BELOW THE
SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE AMOUNT OF SPOUS-
AL SUPPORT SHALL BE THE DIFFERENCE BETWEEN THE PAYOR'S INCOME AND THE
SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS BELOW THE SELF-SUPPORT
RESERVE, THERE IS A REBUTTABLE PRESUMPTION THAT NO SPOUSAL SUPPORT IS
AWARDED.
6. (A) THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
IN ACCORDANCE WITH SUBDIVISIONS THREE AND FOUR OF THIS SECTION, UNLESS
THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT IS UNJUST
OR INAPPROPRIATE AND ADJUSTS THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING FACTORS:
(1) THE AGE AND HEALTH OF THE PARTIES;
(2) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING
THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
(3) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
S. 7266 13
(4) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES MADE IN CONTEMPLATION OF A SUPPORT PROCEEDING WITHOUT
FAIR CONSIDERATION;
(5) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-SUPPORT PROCEEDINGS SEPARATE HOUSEHOLD;
(6) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
(7) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
(8) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
(9) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD
OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
TO THE CHILD SUPPORT STANDARDS ACT, INCLUDING, BUT NOT LIMITED TO,
SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
(10) THE TAX CONSEQUENCES TO EACH PARTY;
(11) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
(12) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
HAVING FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE;
(13) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE
OTHER PARTY; AND
(14) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
(B) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE GUIDELINE AMOUNT OF
SPOUSAL SUPPORT PURSUANT TO THIS SUBDIVISION, THE COURT SHALL SET FORTH,
IN A WRITTEN DECISION, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT, THE
FACTORS IT CONSIDERED, AND THE REASONS THAT THE COURT ADJUSTED THE
GUIDELINE AMOUNT OF SPOUSAL SUPPORT. SUCH WRITTEN DECISION SHALL NOT BE
WAIVED BY EITHER PARTY OR COUNSEL.
(C) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL
NOT ENTER A SPOUSAL SUPPORT ORDER UNLESS THE COURT INFORMS THE UNREPRE-
SENTED PARTY OR PARTIES OF THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT.
7. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER
THE SPOUSAL SUPPORT AWARD BASED UPON THE NEEDS OF THE PAYEE OR THE STAN-
DARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE SPOUSAL
SUPPORT PROCEEDING, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROAC-
TIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON
A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
8. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF SPOUSAL
SUPPORT EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS
OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO
THIS ARTICLE, THE SPOUSAL SUPPORT GUIDELINES SET FORTH IN THIS SECTION
SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANTING MODIFICATION
OF SUCH SPOUSAL SUPPORT ORDER.
S 5. Paragraph a of subdivision 1 of part B of section 236 of the
domestic relations law, as amended by chapter 371 of the laws of 2010,
is amended to read as follows:
S. 7266 14
a. The term "maintenance" shall mean payments provided for in a valid
agreement between the parties or awarded by the court in accordance with
the provisions of subdivisions five-a and six of this part, to be paid
at fixed intervals for a definite or indefinite period of time, but an
award of maintenance shall terminate upon the death of either party or
upon the [recipient's] PAYEE'S valid or invalid marriage, or upon
modification pursuant to paragraph (b) of subdivision nine of [section
two hundred thirty-six of] this part or section two hundred forty-eight
of this chapter.
S 6. Subparagraph 7 of paragraph d of subdivision 5 of part B of
section 236 of the domestic relations law, as amended by chapter 281 of
the laws of 1980 and as renumbered by chapter 229 of the laws of 2009,
is amended to read as follows:
(7) any equitable claim to, interest in, or direct or indirect
contribution made to the acquisition of such marital property by the
party not having title, including joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and homemak-
er, and to the career or career potential of the other party. THE COURT
SHALL NOT CONSIDER AS MARITAL PROPERTY SUBJECT TO DISTRIBUTION THE VALUE
OF A SPOUSE'S ENHANCED EARNING CAPACITY ARISING FROM A LICENSE, DEGREE,
CELEBRITY GOODWILL, OR CAREER ENHANCEMENT. HOWEVER, IN ARRIVING AT AN
EQUITABLE DIVISION OF MARITAL PROPERTY, THE COURT SHALL CONSIDER THE
DIRECT OR INDIRECT CONTRIBUTIONS TO THE DEVELOPMENT DURING THE MARRIAGE
OF THE ENHANCED EARNING CAPACITY OF THE OTHER SPOUSE;
S 7. Section 248 of the domestic relations law, as amended by chapter
604 of the laws of 1975, is amended to read as follows:
S 248. Modification of judgment or order in action for divorce or
annulment. Where an action for divorce or for annulment or for a decla-
ration of the nullity of a void marriage is brought by a husband or
wife, and a final judgment of divorce or a final judgment annulling the
marriage or declaring its nullity has been rendered, the court, by order
upon the application of the [husband] PAYOR on notice, and on proof of
the marriage of the [wife] PAYEE after such final judgment, must modify
such final judgment and any orders made with respect thereto by annull-
ing the provisions of such final judgment or orders, or of both, direct-
ing payments of money for the support of the [wife] PAYEE. The court in
its discretion upon application of the [husband] PAYOR on notice, upon
proof that the [wife] PAYEE is habitually living with another [man]
PERSON and holding HIMSELF OR herself out as [his wife] THE SPOUSE OF
SUCH OTHER PERSON, although not married to such [man] OTHER PERSON, may
modify such final judgment and any orders made with respect thereto by
annulling the provisions of such final judgment or orders or of both,
directing payment of money for the support of such [wife] PAYEE.
S 8. This act shall take effect on the sixtieth day after it shall
have become a law.
co-Sponsors
(D, WF) Senate District
(D, WF) 21st Senate District
(D, IP) Senate District
2013-S7266A (ACTIVE) - Details
- See Assembly Version of this Bill:
- A9606
- Current Committee:
- Senate Rules
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§236 & 248, Dom Rel L; amd §412, Fam Ct Act
2013-S7266A (ACTIVE) - Sponsor Memo
BILL NUMBER:S7266A
TITLE OF BILL: An act to amend the domestic relations law, in
relation to the duration and amount of maintenance; and to amend the
family court act, in relation to spousal support
PURPOSE OF BILL: To continue taking steps toward reforming the state's
spousal maintenance awards in connection with temporary and final
spousal maintenance awards, providing consistency and predictability
in calculating maintenance awards; and to update spousal support
awards law to mirror the revised provisions for temporary maintenance
awards.
SUMMARY OF PROVISIONS OF BILL:
Section 1. Subdivision 5-a of Part B of section 236 of the Domestic
Relations Law (DRL) as added by chapter 371 of the laws of 2010, is
amended to clarify the calculation of the guideline amount of
temporary maintenance awards and to revise the factors to be
considered to adjust one guideline amount where the court finds the
guideline amount is unjust or inappropriate. This section also reduces
the income cap from $500,000 to $200,000.
Section 2. Subdivision 6 of part B of section 236 of the DRL, as
amended by chapter 371 of the laws of 2010, is amended to provide, in
determining post-divorce maintenance, provisions that track the
provisions for determining temporary maintenance. This section also provides for the guidelines and duration of post-divorce maintenance. Section 3. Subparagraph 1 of paragraph b of subdivision 9 of Part B of section 236 of the DRL, as amended by chapter 182 of the laws of 2010, is amended to provide that a court may annul or modify a prior order or judgment for maintenance upon a showing of a substantial change in circumstances, including remarriage of the payee if the remarriage results in a substantial change in financial circumstances, and actual retirement of the payor if the retirement results in substantial change in financial circumstances. Section 4. Section 412 of the Family Court Act, as amended by chapter 231 of the laws of 1960, is amended to mirror the provisions of temporary maintenance set forth in subdivision 5-a of Part B of section 236 of the DRL. Section 5. Paragraph a of subdivision 1 of part B of section 236 of the DRL, as amended by chapter 371 of the laws of 2010, is amended to replace "recipient" of maintenance to "payee." Section 6. Subparagraph 7 of paragraph d of subdivision 5 of Part B of section 236 of the DRL, as amended by chapter 281 of the laws of 1980 and as renumbered by chapter 229 of the laws of 2009, is amended to provide that in determining an equitable disposition of property pursuant to subdivision 5(c) of Part B of section 236 of the DRL, the court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, the court, in arriving at an equitable division of marital property, shall consider the direct or indirect contributions, to the development during the marriage of the enhanced earning capacity of the other spouse. Section 7. Section 248 of the DRL is amended to replace language referencing "husband" and "wife" to "spouse," "payor," and "payee." Section 8. Effective Date. JUSTIFICATION: This bill completes reforms of New York divorce laws that started in 2010 with the adoption of standards for temporary maintenance similar to the standards used for child support. The bill makes several changes to current law. First, it amends the provisions for temporary maintenance enacted in 2010 by lowering the provision's income cap and by making technical and clarifying amendments, including restating in simpler language the method for calculating the temporary maintenance guideline amount. Second, the bill adopts maintenance standards for post-divorce maintenance awards similar to those for temporary maintenance awards. Third, the bill provides increased guidance to courts hearing motions to modify maintenance awards by clarifying that a substantial change in circumstances includes financial hardship, remarriage of the payee if remarriage results in a substantial change in financial circumstances, and actual retirement of the payor if retirement results in a substantial change in financial circumstances. Fourth, the bill extends the concept of guidelines to the Family Court Act's provisions for spousal support. Fifth, within the context of comprehensive legislation providing for post-divorce maintenance guidelines, the bill eliminates increased earning capacity from consideration in the distribution of marital assets. And, sixth, the bill conforms other portions of the Domestic Relations Law to make them consistent with the bill's provisions for post-divorce maintenance. In 2010, New York State adopted standards for temporary maintenance similar to the standards for child support in the Child Support Standards Act in use since 1989. This reform was a response to serious concerns about the ability of the State's then existing spousal maintenance provisions to produce equitable results. Spousal maintenance awards at the time were inconsistent and unpredictable, creating questions about the fairness of awards and discouraging settlements. Litigation to establish maintenance was lengthy and complex. For parties who could not afford protracted litigation, maintenance was an illusory remedy. The 2010 reforms began the process of incorporating into provisions for spousal maintenance the concept of marriage as an economic Partnership, an idea that New York State adopted for equitable distribution in 1980. Divorce remedies that look to the economic Partnership premise base maintenance on the recognition that parties make different contributions to a marriage, that only some of those contributions are financial, and that some contributions. Particularly those of caring for children and a household, diminish post-divorce earning prospects. As stated in the justification for the 2010 temporary maintenance legis- lation, a commission of the American Academy of Matrimonial Lawyers (AAML Commission) noted that various jurisdictions had adopted a formula approach to determining spousal support. The AAML Commission recommended use of a formula based on two universal factors, the income of the parties and the length of the marriage. Additionally, the American Law Institute, in "Principles of the Law of Family Dissolution; Analysis and Recommendations" (2000) of the American Law Institute (ALI Principles) identified economic losses that spouses suffer at the end of marriage. These losses often take the form of lower earning capacity for spouses who are primary caretakers of children. The ALI Principles suggest that these losses be shared through a formula for determining post-marital spousal support that takes into account the incomes of the parties and the length of the marriage. The 2010 temporary maintenance law provided not just consistency but flexibility through provisions allowing the court to adjust guideline amounts up or down when numbers produced by the formula were inappropriate or unjust. Also, the law provided a list of factors for the court to consider when making adjustments and required courts to provide written explanations for their justifications. Attorneys representing low and middle income parties report that clients, who in spite of great need would have been unable to undertake the litigation necessary for a maintenance award under the vague provisions of the previous law, have been receiving temporary maintenance as a result of the law enacted in 2010. These awards are the result of judicial rulings under the new law and, equally importantly, of settlements informed by clear standards allowing lawyers to predict litigation outcomes. Courts have taken advantage of the provisions providing flexibility and have adjusted awards when necessary for equity in particular cases. Dozens of decisions have been published. The 2010 law also directed the New York State Law Revision Commission (LRC) to, among other things "review the maintenance laws of the State, including the way in which they are administered to determine the impact of these laws on post marital economic disparities and the effectiveness of such laws and their administration in achieving the state's policy goals and objectives of ensure that the economic consequences or a divorce are fairly and equitably shared by the divorcing couple." (Sec. 3 of Chapter 371 of the Laws of 2010.) The LRC issued its final report on May 15, 2013 of its findings, conclusions and recommendations (the LRC Report). The LRC Report, among other things, recommended that the mathematical formula set forth in the 2010 law for the calculation of the guideline amount of temporary maintenance be continued and that a mathematical formula be similarly used to calculate the guideline amount of post-divorce maintenance, with consideration by the court of a set of factors to determine whether the guideline amount of post-divorce maintenance should be increased where the parties' income exceeds the income cap. The LRC also recommended that the provisions providing for spousal support in Family Court proceedings be amended to mirror the temporary maintenance law, revised as recommended by the LRC. This bill incorporates many of the recommendations set forth in the LRC Report. Section one of this bill makes small adjustments that refine, clarify, and streamline the current temporary maintenance standards law. The provisions for calculating the formula amount have been simplified. Factors for judges to consider when adjusting awards have been condensed and clarified, and factors inapplicable to temporary maintenance removed. Provisions confirming judicial practice, concerning allocation of responsibility for family expenses and the independence of decisions on temporary and cost-divorce maintenance, have been added. The bill retains provisions for courts to consider the length of marriage in setting the duration of maintenance so that judges hearing cases involving short-term marriage may terminate maintenance before the divorce is final. And, last, the bill lowers the income cap used in temporary maintenance provisions from $500,000 to $200,000. The $200,000 cap takes into account the high cost of litigating a right to maintenance without the kind of simplified method provided for families by maintenance guidelines. This cost is sufficiently high so that only the wealthiest divorcing spouses can afford to litigate maintenance. Section two of this bill extends the benefits of the temporary maintenance provisions to post-divorce maintenance awards. Post-divorce maintenance awards remain the "wild card" in divorce litigation. Awards are still inconsistent and unpredictable, and lengthy, expensive litigation is still necessary to achieve equitable results. Using guidelines based on a formula with flexibility for adjustments up and down for final maintenance will change this. Much of the second section of the bill tracks the language of the temporary maintenance law, including the restated and clarified provisions set forth in this bill for calculating the guideline amount of a temporary maintenance award. The major differences between the temporary and post-divorce maintenance provisions are the provisions on duration. Temporary maintenance usually lasts until a legal case concludes with a final judgment of divorce, except where courts terminate temporary maintenance prior to the divorce becoming final based on consideration of the length of marriage as mentioned above. Post-divorce maintenance needs its own clear end point, and this bill proscribes a duration calculated as a percent of the length of the marriage. Like the recommendations on duration in the AAML Commission and the ALI Principles, the longer the marriage, the longer the time post-divorce maintenance will be paid. The bill also provides that maintenance payments will end on the death of either party. Section three of this bill amends New York's divorce laws to provide guidance for the court in deciding applications for modification of maintenance awards. it specifies that a substantial change in circumstances includes remarriage of the payee spouse but only when the remarriage results in a substantial change in the payee's financial circumstances, and the actual retirement of the payer but only when retirement results in a substantial change in the payor's financial circumstances, in addition to financial hardship. While remarriage does not necessarily improve financial status, remarriage in some cases may better significantly the financial standing of the payee spouse. When it does, this section allows a judge to modify an earlier order. Just as remarriage does not necessarily improve the financial status of a payee spouse, retirement does not necessarily worsen the financial outlook of a payor spouse. Retirement has become a fluid concept. People commonly work beyond traditional or social security retirement ages, and many who retire from one job find other employment, either full-time or part-time. Judges can make fair determinations about modifications by examining the changed financial status upon actual retirement. Section four of the bill adopts the guideline approach to spousal support proceedings brought in Family Court. The bill's spousal support provisions closely track provisions for temporary maintenance and make available to vulnerable spouses the same kind consistent, predictable results that maintenance guidelines provide to divorcing couples. Section six amends the Domestic Relations Law to eliminate a form of marital property, enhanced earning capacity, recognized by the Court of Appeals in O'Brien v O'Brien, 66 NY 2d 576 (1985). Two essential elements of the post-divorce guideline provisions of this bill make possible the elimination of the treatment of enhanced earning capacity as marital assets. First, the formula used in the bill's post-divorce maintenance provisions is based on a rough assessment of future earnings, i.e. current earning capacity, while provisions for adjusting the guideline obligation allow judges to fine-tune the initial assessments about what spouses are likely to earn post-divorce. Second, the provisions for post-marital maintenance in this bill, like obligations created in equitable distribution provisions, allow for payments regardless of whether or not the recipient remarries. Only if maintenance is calculated through use of guidelines for both amount and duration and only if maintenance payments may continue after remarriage can maintenance substitute for treating enhanced earning capacity as a marital asset. To eliminate enhanced earning capacity as a marital asset without these critical reforms to our maintenance laws would be a great in justice to spouses who have sacrificed their education and/or careers for the benefit of the marital partnership. Section seven amends the Domestic Relation Law relating to applications made to the court by a spouse when their former spouse is cohabitating with another person and is holding themselves out as a spouse of that person. This section changes the language from "wife" and "husband" to "spouse." Currently, the law assumes the wife is the party cohabitating and being paid maintenance, and the husband is making the application to the court for a change in maintenance paid. LEGISLATIVE HISTORY: This is a new bill. FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None. EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall become a law.
2013-S7266A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
7266--A
Cal. No. 670
I N S E N A T E
May 8, 2014
___________
Introduced by Sens. BONACIC, HASSELL-THOMPSON, PARKER, SAVINO -- read
twice and ordered printed, and when printed to be committed to the
Committee on Judiciary -- reported favorably from said committee,
ordered to first and second report, ordered to a third reading,
amended and ordered reprinted, retaining its place in the order of
third reading
AN ACT to amend the domestic relations law, in relation to the duration
and amount of maintenance; and to amend the family court act, in
relation to spousal support
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 5-a of part B of section 236 of the domestic
relations law, as added by chapter 371 of the laws of 2010, is amended
to read as follows:
5-a. Temporary maintenance awards. a. Except where the parties have
entered into an agreement pursuant to subdivision three of this part
providing for maintenance, in any matrimonial action the court shall
make its award for temporary maintenance pursuant to the provisions of
this subdivision.
b. For purposes of this subdivision, the following definitions shall
be used:
(1) "Payor" shall mean the spouse with the higher income.
(2) "Payee" shall mean the spouse with the lower income.
(3) "Length of marriage" shall mean the period from the date of
marriage until the date of commencement of action.
(4) "Income" shall mean[:
(a)] income as defined in the child support standards act and codified
in section two hundred forty of this article and section four hundred
thirteen of the family court act[; and
(b) income from income producing property to be distributed pursuant
to subdivision five of this part].
(5) "Income cap" shall mean up to and including [five] TWO hundred
thousand dollars of the payor's annual income; provided, however, begin-
ning January thirty-first, two thousand [twelve] SIXTEEN and every two
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15051-02-4
S. 7266--A 2
years thereafter, the [payor's annual] income CAP amount shall increase
by the [product] SUM of the average annual percentage changes in the
consumer price index for all urban consumers (CPI-U) as published by the
United States department of labor bureau of labor statistics for the
PRIOR two [year period] YEARS MULTIPLIED BY THE CURRENT PAYOR'S ANNUAL
INCOME AMOUNT AND THEN rounded to the nearest one thousand dollars. The
office of court administration shall determine and publish the income
cap.
(6) "Guideline amount of temporary maintenance" shall mean the [sum]
DOLLAR AMOUNT derived by the application of paragraph c OR D of this
subdivision.
(7) ["Guideline duration" shall mean the durational period determined
by the application of paragraph d of this subdivision.
(8) "Presumptive award" shall mean the guideline amount of the tempo-
rary maintenance award for the guideline duration prior to the court's
application of any adjustment factors as provided in subparagraph one of
paragraph e of this subdivision.
(9)] "Self-support reserve" shall mean the self-support reserve as
defined in the child support standards act and codified in section two
hundred forty of this article and section four hundred thirteen of the
family court act.
c. [The court shall determine the guideline amount of temporary main-
tenance in accordance with the provisions of this paragraph after deter-
mining the income of the parties:
(1) Where the payor's income is up to and including the income cap:
(a) the court shall subtract twenty percent of the income of the payee
from thirty percent of the income up to the income cap of the payor.
(b) the court shall then multiply the sum of the payor's income up to
and including the income cap and all of the payee's income by forty
percent.
(c) the court shall subtract the income of the payee from the amount
derived from clause (b) of this subparagraph.
(d) the guideline amount of temporary maintenance shall be the lower
of the amounts determined by clauses (a) and (c) of this subparagraph;
if the amount determined by clause (c) of this subparagraph is less than
or equal to zero, the guideline amount shall be zero dollars.
(2) Where the income of the payor exceeds the income cap:
(a) the court shall determine the guideline amount of temporary main-
tenance for that portion of the payor's income that is up to and includ-
ing the income cap according to subparagraph one of this paragraph, and,
for the payor's income in excess of the income cap, the court shall
determine any additional guideline amount of temporary maintenance
through consideration of the following factors:
(i) the length of the marriage;
(ii) the substantial differences in the incomes of the parties;
(iii) the standard of living of the parties established during the
marriage;
(iv) the age and health of the parties;
(v) the present and future earning capacity of the parties;
(vi) the need of one party to incur education or training expenses;
(vii) the wasteful dissipation of marital property;
(viii) the transfer or encumbrance made in contemplation of a matrimo-
nial action without fair consideration;
(ix) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
S. 7266--A 3
(x) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(xi) the availability and cost of medical insurance for the parties;
(xii) the care of the children or stepchildren, disabled adult chil-
dren or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity or ability to obtain
meaningful employment;
(xiii) the inability of one party to obtain meaningful employment due
to age or absence from the workforce;
(xiv) the need to pay for exceptional additional expenses for the
child or children, including, but not limited to, schooling, day care
and medical treatment;
(xv) the tax consequences to each party;
(xvi) marital property subject to distribution pursuant to subdivision
five of this part;
(xvii) the reduced or lost earning capacity of the party seeking
temporary maintenance as a result of having foregone or delayed educa-
tion, training, employment or career opportunities during the marriage;
(xviii) the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and
(xix) any other factor which the court shall expressly find to be just
and proper.
(b)] WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME
CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
NANCE AS FOLLOWS:
(1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
(2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
(4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
GRAPHS ONE AND THREE OF THIS PARAGRAPH.
(5) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE AMOUNT
DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF THE
AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR
EQUAL TO ZERO, THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE
ZERO DOLLARS.
D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE AS FOLLOWS:
(1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
INCOMES OF PAYOR AND PAYEE.
(2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE
INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
PAYEE.
(3) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE EITHER:
(A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
OR
S. 7266--A 4
(B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH H OF THIS SUBDIVISION.
(4) In any decision made pursuant to CLAUSE (B) OF SUBPARAGRAPH THREE
OF this [subparagraph] PARAGRAPH, the court shall set forth the factors
it considered and the reasons for its decision IN WRITING. Such written
[order] DECISION may not be waived by either party or counsel.
[(3)] E. Notwithstanding the provisions of this [paragraph] SUBDIVI-
SION, where the guideline amount of temporary maintenance would reduce
the payor's income below the self-support reserve for a single person,
[the presumptive amount of] the guideline amount of temporary mainte-
nance shall be the difference between the payor's income and the self-
support reserve. If the payor's income is below the self-support
reserve, there is a rebuttable presumption that no temporary maintenance
is awarded.
[d.] F. The court shall determine the [guideline] duration of tempo-
rary maintenance by considering the length of the marriage.
G. Temporary maintenance shall terminate upon the issuance of the
[final award] DETERMINATION of POST-DIVORCE maintenance or the death of
either party, whichever occurs first.
[e.] H. (1) The court shall order the [presumptive award] GUIDELINE
AMOUNT of temporary maintenance in accordance with paragraphs c and d of
this subdivision, unless the court finds that the [presumptive award]
GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE is unjust or inappropriate,
WHICH FINDING SHALL BE BASED UPON CONSIDERATION OF THE FOLLOWING
FACTORS, and adjusts the [presumptive award] GUIDELINE AMOUNT of tempo-
rary maintenance accordingly based upon SUCH consideration [of the
following factors]:
(a) [the standard of living of the parties established during the
marriage;
(b)] the age and health of the parties;
[(c)] (B) the PRESENT OR FUTURE earning capacity of the parties,
INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
[(d)] (C) the need of one party to incur education or training
expenses;
[(e)] (D) the wasteful dissipation of marital property[;
(f) the transfer], INCLUDING TRANSFERS or [encumbrance] ENCUMBRANCES
made in contemplation of a matrimonial action without fair consider-
ation;
[(g)] (E) the existence and duration of a pre-marital joint household
or a pre-divorce separate household;
[(h)] (F) acts by one party against another that have inhibited or
continue to inhibit a party's earning capacity or ability to obtain
meaningful employment. Such acts include but are not limited to acts of
domestic violence as provided in section four hundred fifty-nine-a of
the social services law;
[(i)] (G) the availability and cost of medical insurance for the
parties;
[(j)] (H) the care of [the] children or stepchildren, disabled adult
children or stepchildren, elderly parents or in-laws PROVIDED DURING THE
MARRIAGE that [has inhibited or continues to inhibit] INHIBITS a party's
earning capacity [or ability to obtain meaningful employment];
[(k) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
(l)] (I) the need to pay for exceptional additional expenses for the
child or children NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT
S. 7266--A 5
PURSUANT TO THE CHILD SUPPORT STANDARDS ACT, including, but not limited
to, schooling, day care and medical treatment;
[(m)] (J) the tax consequences to each party;
(K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
[(n) marital property subject to distribution pursuant to subdivision
five of this part;
(o)] (L) the reduced or lost earning capacity of the [party seeking
temporary maintenance] PAYEE as a result of having foregone or delayed
education, training, employment or career opportunities during the
marriage;
[(p) the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker and to the
career or career potential of the other party;] and
[(q)] (M) any other factor which the court shall expressly find to be
just and proper.
(2) Where the court finds that the [presumptive award] GUIDELINE
AMOUNT of temporary maintenance is unjust or inappropriate and the court
adjusts the [presumptive award] GUIDELINE AMOUNT of temporary mainte-
nance pursuant to this paragraph, the court shall set forth, in a writ-
ten [order] DECISION, the [amount of the unadjusted presumptive award]
GUIDELINE AMOUNT of temporary maintenance, the factors it considered,
and the reasons that the court adjusted the [presumptive award] GUIDE-
LINE AMOUNT of temporary maintenance. Such written [order] DECISION
shall not be waived by either party or counsel.
(3) Where either or both parties are unrepresented, the court shall
not enter a temporary maintenance order unless the COURT INFORMS THE
unrepresented party or parties [have been informed] of the [presumptive
award] GUIDELINE AMOUNT of temporary maintenance.
[f. A validly executed agreement or stipulation voluntarily entered
into between the parties in an action commenced after the effective date
of this subdivision presented to the court for incorporation in an order
shall include a provision stating that the parties have been advised of
the provisions of this subdivision, and that the presumptive award
provided for therein results in the correct amount of temporary mainte-
nance. In the event that such agreement or stipulation deviates from the
presumptive award of temporary maintenance, the agreement or stipulation
must specify the amount that such presumptive award of temporary mainte-
nance would have been and the reason or reasons that such agreement or
stipulation does not provide for payment of that amount. Such provision
may not be waived by either party or counsel. Nothing contained in this
subdivision shall be construed to alter the rights of the parties to
voluntarily enter into validly executed agreements or stipulations which
deviate from the presumptive award of temporary maintenance provided
such agreements or stipulations comply with the provisions of this
subdivision. The court shall, however, retain discretion with respect to
temporary, and post-divorce maintenance awards pursuant to this section.
Any court order incorporating a validly executed agreement or stipu-
lation which deviates from the presumptive award of temporary mainte-
nance shall set forth the court's reasons for such deviation.
g.] I. When a party has defaulted and/or the court is otherwise
presented with insufficient evidence to determine [gross] income, the
court shall order the temporary maintenance award based upon the needs
of the payee or the standard of living of the parties prior to commence-
ment of the divorce action, whichever is greater. Such order may be
S. 7266--A 6
retroactively modified upward without a showing of change in circum-
stances upon a showing of newly discovered or obtained evidence.
[h.] J. In any action or proceeding for modification of an order of
maintenance or alimony existing prior to the effective date of this
subdivision, brought pursuant to this article, the temporary maintenance
guidelines set forth in this subdivision shall not constitute a change
of circumstances warranting modification of such support order.
[i. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in this subdivision.]
K. THE COURT MAY ALLOCATE THE RESPONSIBILITIES OF THE RESPECTIVE
SPOUSES FOR THE FAMILY'S EXPENSES DURING THE PENDENCY OF THE PROCEEDING.
L. THE TEMPORARY MAINTENANCE ORDER SHALL NOT PREJUDICE THE RIGHTS OF
EITHER PARTY REGARDING A POST-DIVORCE MAINTENANCE AWARD.
S 2. Subdivision 6 of part B of section 236 of the domestic relations
law, as amended by chapter 371 of the laws of 2010, is amended to read
as follows:
6. Post-divorce maintenance awards. a. Except where the parties have
entered into an agreement pursuant to subdivision three of this part
providing for maintenance, in any matrimonial action the court [may
order maintenance in such amount as justice requires, having regard for
the standard of living of the parties established during the marriage,
whether the party in whose favor maintenance is granted lacks sufficient
property and income to provide for his or her reasonable needs and
whether the other party has sufficient property or income to provide for
the reasonable needs of the other and the circumstances of the case and
of the respective parties. Such order shall be effective as of the date
of the application therefor, and any retroactive amount of maintenance
due shall be paid in one sum or periodic sums, as the court shall
direct, taking into account any amount of temporary maintenance which
has been paid. In determining the amount and duration of maintenance the
court shall consider:
(1) the income and property of the respective parties including mari-
tal property distributed pursuant to subdivision five of this part;
(2) the length of the marriage;
(3) the age and health of both parties;
(4) the present and future earning capacity of both parties;
(5) the need of one party to incur education or training expenses;
(6) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(7) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(8) the ability of the party seeking maintenance to become self-sup-
porting and, if applicable, the period of time and training necessary
therefor;
(9) reduced or lost lifetime earning capacity of the party seeking
maintenance as a result of having foregone or delayed education, train-
ing, employment, or career opportunities during the marriage;
(10) the presence of children of the marriage in the respective homes
of the parties;
S. 7266--A 7
(11) the care of the children or stepchildren, disabled adult children
or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity;
(12) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
(13) the need to pay for exceptional additional expenses for the
child/children, including but not limited to, schooling, day care and
medical treatment;
(14) the tax consequences to each party;
(15) the equitable distribution of marital property;
(16) contributions and services of the party seeking maintenance as a
spouse, parent, wage earner and homemaker, and to the career or career
potential of the other party;
(17) the wasteful dissipation of marital property by either spouse;
(18) the transfer or encumbrance made in contemplation of a matrimoni-
al action without fair consideration;
(19) the loss of health insurance benefits upon dissolution of the
marriage, and the availability and cost of medical insurance for the
parties; and
(20) any other factor which the court shall expressly find to be just
and proper] SHALL MAKE ITS AWARD FOR POST-DIVORCE MAINTENANCE PURSUANT
TO THE PROVISIONS OF THIS SUBDIVISION.
b. [In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
c. The court may award permanent maintenance, but an award of mainte-
nance shall terminate upon the death of either party or upon the recipi-
ent's valid or invalid marriage, or upon modification pursuant to para-
graph b of subdivision nine of this part or section two hundred
forty-eight of this chapter.
d. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph a of this subdivision.]
FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL BE
USED:
(1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
(2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
(3) "INCOME" SHALL MEAN:
(A) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
THIRTEEN OF THE FAMILY COURT ACT, EXCEPT THAT TEMPORARY MAINTENANCE PAID
PURSUANT TO SUBDIVISION FIVE-A OF THIS PART AND SPOUSAL SUPPORT PAID
PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT ACT, SHALL
NOT BE DEDUCTED FROM PAYOR'S INCOME; AND
(B) INCOME FROM INCOME-PRODUCING PROPERTY DISTRIBUTED OR TO BE
DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
(4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING TWO HUNDRED THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY TWO YEARS THEREAFTER,
THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF THE AVERAGE ANNUAL
PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS
(CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU OF
LABOR STATISTICS FOR THE PRIOR TWO YEARS MULTIPLIED BY THE CURRENT
PAYOR'S ANNUAL INCOME AMOUNT AND THEN ROUNDED TO THE NEAREST ONE THOU-
S. 7266--A 8
SAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
(5) "GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
DOLLAR AMOUNT DERIVED BY THE APPLICATION OF PARAGRAPH C OR D OF THIS
SUBDIVISION.
(6) "GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
DURATIONAL PERIOD DETERMINED BY THE APPLICATION OF PARAGRAPH E OF THIS
SUBDIVISION.
(7) "POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION" SHALL MEAN THE
GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE DURATION
OF POST-DIVORCE MAINTENANCE.
(8) "LENGTH OF MARRIAGE" SHALL MEAN THE PERIOD FROM THE DATE OF
MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
(9) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS
DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
FAMILY COURT ACT.
C. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTE-
NANCE AS FOLLOWS:
(1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
(2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
(4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
GRAPHS ONE AND THREE OF THIS PARAGRAPH.
(5) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE
AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF
THE AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS
THAN OR EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE
SHALL BE ZERO DOLLARS.
(6) NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, WHERE THE
GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE WOULD REDUCE THE PAYOR'S
INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE DIFFERENCE BETWEEN THE
PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS
BELOW THE SELF-SUPPORT RESERVE, THERE IS A REBUTTABLE PRESUMPTION THAT
NO POST-DIVORCE MAINTENANCE IS AWARDED.
D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AS FOLLOWS:
(1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
INCOMES OF PAYOR AND PAYEE.
(2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE
INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
PAYEE.
(3) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE EITHER:
(A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
OR
(B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH F OF THIS SUBDIVISION.
S. 7266--A 9
(4) IN ANY DECISION MADE PURSUANT TO CLAUSE (B) OF SUBPARAGRAPH THREE
OF THIS PARAGRAPH, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED
AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN DECISION MAY
NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
E. THE GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE SHALL BE DETER-
MINED AS FOLLOWS:
(1) THE COURT SHALL DETERMINE THE GUIDELINE DURATION OF POST-DIVORCE
MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:
LENGTH OF THE MARRIAGE PERCENT OF THE LENGTH
OF THE MARRIAGE FOR WHICH
MAINTENANCE WILL BE PAYABLE
0 UP TO AND INCLUDING 5 YEARS 20%
MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS 30%
MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS 40%
MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS 50%
MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS 60%
MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS 70%
MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS 80%
MORE THAN 20, UP TO AND INCLUDING 25 YEARS 90%
MORE THAN 25 YEARS NONDURATIONAL
(2) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARA-
GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE DEATH OF THE
PAYOR OR PAYEE OR UPON THE PAYEE'S VALID OR INVALID MARRIAGE.
F. (1) THE COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION IN ACCORDANCE WITH PARAGRAPHS C, D AND E OF THIS SUBDIVISION,
UNLESS THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
GATION IS UNJUST OR INAPPROPRIATE, WHICH FINDING SHALL BE BASED UPON
CONSIDERATION OF THE FOLLOWING FACTORS, AND ADJUSTS THE POST-DIVORCE
MAINTENANCE GUIDELINE OBLIGATION ACCORDINGLY BASED UPON SUCH CONSIDER-
ATION:
(A) THE AGE AND HEALTH OF THE PARTIES;
(B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING
THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
(C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
(D) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES MADE IN CONTEMPLATION OF A MATRIMONIAL ACTION WITHOUT
FAIR CONSIDERATION;
(E) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
(F) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
(G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
(H) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
(I) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD
OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
TO THE CHILD SUPPORT STANDARDS ACT, INCLUDING, BUT NOT LIMITED TO,
SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
(J) THE TAX CONSEQUENCES TO EACH PARTY;
(K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
S. 7266--A 10
(L) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
HAVING FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE;
(M) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY;
(N) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE
OTHER PARTY;
(O) ACTUAL RETIREMENT OF THE PAYOR IF THE RETIREMENT RESULTS IN A
SUBSTANTIAL CHANGE IN FINANCIAL CIRCUMSTANCES; AND
(P) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
(2) WHERE THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE POST-DI-
VORCE MAINTENANCE GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE
COURT SHALL SET FORTH, IN A WRITTEN DECISION, THE UNADJUSTED POST-DI-
VORCE MAINTENANCE GUIDELINE OBLIGATION, THE FACTORS IT CONSIDERED, AND
THE REASONS THAT THE COURT ADJUSTED THE POST-DIVORCE MAINTENANCE OBLI-
GATION. SUCH WRITTEN DECISION SHALL NOT BE WAIVED BY EITHER PARTY OR
COUNSEL.
G. WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT
ENTER A MAINTENANCE ORDER OR JUDGMENT UNLESS THE COURT INFORMS THE
UNREPRESENTED PARTY OR PARTIES OF THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION.
H. A VALIDLY EXECUTED AGREEMENT OR STIPULATION VOLUNTARILY ENTERED
INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE
OF THE CHAPTER OF THE LAWS OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS
SUBDIVISION PRESENTED TO THE COURT FOR INCORPORATION IN AN ORDER OR
JUDGMENT SHALL INCLUDE A PROVISION STATING THAT THE PARTIES HAVE BEEN
ADVISED OF THE PROVISIONS OF THIS SUBDIVISION, AND THAT THE POST-DIVORCE
MAINTENANCE GUIDELINE OBLIGATION PROVIDED FOR THEREIN WOULD PRESUMPTIVE-
LY RESULT IN THE CORRECT AMOUNT OF POST-DIVORCE MAINTENANCE. IN THE
EVENT THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE
MAINTENANCE GUIDELINE OBLIGATION, THE AGREEMENT OR STIPULATION MUST
SPECIFY THE AMOUNT THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
GATION WOULD HAVE BEEN AND THE REASON OR REASONS THAT SUCH AGREEMENT OR
STIPULATION DOES NOT PROVIDE FOR PAYMENT OF THAT AMOUNT. SUCH PROVISION
MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL. NOTHING CONTAINED IN THIS
SUBDIVISION SHALL BE CONSTRUED TO ALTER THE RIGHTS OF THE PARTIES TO
VOLUNTARILY ENTER INTO VALIDLY EXECUTED AGREEMENTS OR STIPULATIONS WHICH
DEVIATE FROM THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION PROVIDED
SUCH AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS
SUBDIVISION. ANY COURT ORDER INCORPORATING A VALIDLY EXECUTED AGREEMENT
OR STIPULATION WHICH DEVIATES FROM THE POST-DIVORCE MAINTENANCE GUIDE-
LINE OBLIGATION SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION.
I. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER
THE POST-DIVORCE MAINTENANCE BASED UPON THE NEEDS OF THE PAYEE OR THE
STANDARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE DIVORCE
ACTION, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROACTIVELY MODIFIED
UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON A SHOWING OF
NEWLY DISCOVERED OR OBTAINED EVIDENCE.
J. POST-DIVORCE MAINTENANCE MAY BE MODIFIED PURSUANT TO PARAGRAPH B OF
SUBDIVISION NINE OF THIS PART.
K. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF
THE LAWS OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS SUBDIVISION,
S. 7266--A 11
BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN-
TENANCE SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF
CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF
THE LAWS OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS SUBDIVISION,
BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN-
TENANCE SET FORTH IN PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL
APPLY.
M. IN ANY DECISION MADE PURSUANT TO THIS SUBDIVISION THE COURT SHALL,
WHERE APPROPRIATE, CONSIDER THE EFFECT OF A BARRIER TO REMARRIAGE, AS
DEFINED IN SUBDIVISION SIX OF SECTION TWO HUNDRED FIFTY-THREE OF THIS
ARTICLE, ON THE FACTORS ENUMERATED IN PARAGRAPH F OF THIS SUBDIVISION.
S 3. Subparagraph 1 of paragraph b of subdivision 9 of part B of
section 236 of the domestic relations law, as amended by chapter 182 of
the laws of 2010, is amended to read as follows:
(1) Upon application by either party, the court may annul or modify
any prior order or judgment as to maintenance, upon a showing of the
[recipient's] PAYEE'S inability to be self-supporting [or a substantial
change in circumstance or], THE termination of child support awarded
pursuant to section two hundred forty of this article, OR A SUBSTANTIAL
CHANGE IN CIRCUMSTANCE including financial hardship AND ACTUAL RETIRE-
MENT OF THE PAYOR IF THE RETIREMENT RESULTS IN A SUBSTANTIAL CHANGE IN
FINANCIAL CIRCUMSTANCES. Where, after the effective date of this part, a
separation agreement remains in force no modification of a prior order
or judgment incorporating the terms of said agreement shall be made as
to maintenance without a showing of extreme hardship on either party, in
which event the judgment or order as modified shall supersede the terms
of the prior agreement and judgment for such period of time and under
such circumstances as the court determines. The court shall not reduce
or annul any arrears of maintenance which have been reduced to final
judgment pursuant to section two hundred forty-four of this article. No
other arrears of maintenance which have accrued prior to the making of
such application shall be subject to modification or annulment unless
the defaulting party shows good cause for failure to make application
for relief from the judgment or order directing such payment prior to
the accrual of such arrears and the facts and circumstances constituting
good cause are set forth in a written memorandum of decision. Such
modification may increase maintenance nunc pro tunc as of the date of
application based on newly discovered evidence. Any retroactive amount
of maintenance due shall, except as provided for herein, be paid in one
sum or periodic sums, as the court directs, taking into account any
temporary or partial payments which have been made. The provisions of
this subdivision shall not apply to a separation agreement made prior to
the effective date of this part.
S 4. Section 412 of the family court act, as amended by chapter 281 of
the laws of 1980, is amended to read as follows:
S 412. Married person's duty to support spouse. 1. A married person is
chargeable with the support of his or her spouse and, [if possessed of
sufficient means or able to earn such means, may be required to pay for
his or her support a fair and reasonable sum, as the court may deter-
mine, having due regard to the circumstances of the respective parties.]
EXCEPT WHERE THE PARTIES HAVE ENTERED INTO AN AGREEMENT PURSUANT TO
SECTION FOUR HUNDRED TWENTY-FIVE OF THIS ARTICLE PROVIDING FOR SUPPORT,
THE COURT SHALL MAKE ITS AWARD FOR SPOUSAL SUPPORT PURSUANT TO THE
PROVISIONS OF THIS PART.
S. 7266--A 12
2. FOR PURPOSES OF THIS SECTION, THE FOLLOWING DEFINITIONS SHALL BE
USED:
(A) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
(B) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
(C) "INCOME" SHALL MEAN INCOME AS DEFINED IN THE CHILD SUPPORT STAND-
ARDS ACT AND CODIFIED IN SECTION TWO HUNDRED FORTY OF THE DOMESTIC
RELATIONS LAW AND SECTION FOUR HUNDRED THIRTEEN OF THIS PART.
(D) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING TWO HUNDRED THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY TWO YEARS THEREAFTER,
THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF THE AVERAGE ANNUAL
PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS
(CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU OF
LABOR STATISTICS FOR THE PRIOR TWO YEARS MULTIPLIED BY THE CURRENT
PAYOR'S ANNUAL INCOME AMOUNT AND THEN ROUNDED TO THE NEAREST ONE THOU-
SAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
(E) "GUIDELINE AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED
BY THE APPLICATION OF SUBDIVISION THREE OR FOUR OF THIS SECTION.
(F) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS
DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW AND SECTION FOUR HUNDRED
THIRTEEN OF THIS PART.
3. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS
FOLLOWS:
(A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
(B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(C) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM PARAGRAPH (B) OF THIS SUBDIVISION.
(D) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY PARA-
GRAPHS (A) AND (C) OF THIS SUBDIVISION.
(E) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
MINED BY PARAGRAPH (D) OF THIS SUBDIVISION EXCEPT THAT, IF THE AMOUNT
DETERMINED BY PARAGRAPH (D) OF THIS SUBDIVISION IS LESS THAN OR EQUAL TO
ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
4. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS:
(A) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
(A) THROUGH (D) OF SUBDIVISION THREE OF THIS SECTION FOR THE TOTAL
INCOMES OF PAYOR AND PAYEE.
(B) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
(A) THROUGH (D) OF SUBDIVISION THREE OF THIS SECTION FOR THE INCOME OF
PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE.
(C) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE EITHER:
(1) THE CALCULATION DERIVED FROM PARAGRAPH (A) OF THIS SUBDIVISION; OR
(2) THE AMOUNT DERIVED FROM PARAGRAPH (B) OF THIS SUBDIVISION PLUS AN
AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
SET FORTH IN PARAGRAPH (A) OF SUBDIVISION SIX OF THIS SECTION.
(D) IN ANY DECISION MADE PURSUANT TO SUBPARAGRAPH TWO OF PARAGRAPH (C)
OF THIS SUBDIVISION, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED
AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN DECISION MAY
NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
S. 7266--A 13
5. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WHERE THE GUIDELINE
AMOUNT OF SPOUSAL SUPPORT WOULD REDUCE THE PAYOR'S INCOME BELOW THE
SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE AMOUNT OF SPOUS-
AL SUPPORT SHALL BE THE DIFFERENCE BETWEEN THE PAYOR'S INCOME AND THE
SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS BELOW THE SELF-SUPPORT
RESERVE, THERE IS A REBUTTABLE PRESUMPTION THAT NO SPOUSAL SUPPORT IS
AWARDED.
6. (A) THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
IN ACCORDANCE WITH SUBDIVISIONS THREE AND FOUR OF THIS SECTION, UNLESS
THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT IS UNJUST
OR INAPPROPRIATE, WHICH FINDING SHALL BE BASED UPON CONSIDERATION OF THE
FOLLOWING FACTORS, AND ADJUSTS THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
ACCORDINGLY BASED UPON CONSIDERATION:
(1) THE AGE AND HEALTH OF THE PARTIES;
(2) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING
THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
(3) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
(4) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES MADE IN CONTEMPLATION OF A SUPPORT PROCEEDING WITHOUT
FAIR CONSIDERATION;
(5) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-SUPPORT PROCEEDINGS SEPARATE HOUSEHOLD;
(6) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
(7) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
(8) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
(9) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD
OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
TO THE CHILD SUPPORT STANDARDS ACT, INCLUDING, BUT NOT LIMITED TO,
SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
(10) THE TAX CONSEQUENCES TO EACH PARTY;
(11) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
(12) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
HAVING FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE;
(13) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE
OTHER PARTY; AND
(14) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
(B) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE GUIDELINE AMOUNT OF
SPOUSAL SUPPORT PURSUANT TO THIS SUBDIVISION, THE COURT SHALL SET FORTH,
IN A WRITTEN DECISION, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT, THE
FACTORS IT CONSIDERED, AND THE REASONS THAT THE COURT ADJUSTED THE
GUIDELINE AMOUNT OF SPOUSAL SUPPORT. SUCH WRITTEN DECISION SHALL NOT BE
WAIVED BY EITHER PARTY OR COUNSEL.
(C) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL
NOT ENTER A SPOUSAL SUPPORT ORDER UNLESS THE COURT INFORMS THE UNREPRE-
SENTED PARTY OR PARTIES OF THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT.
S. 7266--A 14
7. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER
THE SPOUSAL SUPPORT AWARD BASED UPON THE NEEDS OF THE PAYEE OR THE STAN-
DARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE SPOUSAL
SUPPORT PROCEEDING, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROAC-
TIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON
A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
8. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF SPOUSAL
SUPPORT EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS
OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO
THIS ARTICLE, THE SPOUSAL SUPPORT GUIDELINES SET FORTH IN THIS SECTION
SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANTING MODIFICATION
OF SUCH SPOUSAL SUPPORT ORDER.
S 5. Paragraph a of subdivision 1 of part B of section 236 of the
domestic relations law, as amended by chapter 371 of the laws of 2010,
is amended to read as follows:
a. The term "maintenance" shall mean payments provided for in a valid
agreement between the parties or awarded by the court in accordance with
the provisions of subdivisions five-a and six of this part, to be paid
at fixed intervals for a definite or indefinite period of time, but an
award of maintenance shall terminate upon the death of either party or
upon the [recipient's] PAYEE'S valid or invalid marriage, or upon
modification pursuant to paragraph (b) of subdivision nine of [section
two hundred thirty-six of] this part or section two hundred forty-eight
of this chapter.
S 6. Subparagraph 7 of paragraph d of subdivision 5 of part B of
section 236 of the domestic relations law, as amended by chapter 281 of
the laws of 1980 and as renumbered by chapter 229 of the laws of 2009,
is amended to read as follows:
(7) any equitable claim to, interest in, or direct or indirect
contribution made to the acquisition of such marital property by the
party not having title, including joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and homemak-
er, and to the career or career potential of the other party. THE COURT
SHALL NOT CONSIDER AS MARITAL PROPERTY SUBJECT TO DISTRIBUTION THE VALUE
OF A SPOUSE'S ENHANCED EARNING CAPACITY ARISING FROM A LICENSE, DEGREE,
CELEBRITY GOODWILL, OR CAREER ENHANCEMENT. HOWEVER, IN ARRIVING AT AN
EQUITABLE DIVISION OF MARITAL PROPERTY, THE COURT SHALL CONSIDER THE
DIRECT OR INDIRECT CONTRIBUTIONS TO THE DEVELOPMENT DURING THE MARRIAGE
OF THE ENHANCED EARNING CAPACITY OF THE OTHER SPOUSE;
S 7. Section 248 of the domestic relations law, as amended by chapter
604 of the laws of 1975, is amended to read as follows:
S 248. Modification of judgment or order in action for divorce or
annulment. Where an action for divorce or for annulment or for a decla-
ration of the nullity of a void marriage is brought by a husband or
wife, and a final judgment of divorce or a final judgment annulling the
marriage or declaring its nullity has been rendered, the court, by order
upon the application of the [husband] PAYOR on notice, and on proof of
the marriage of the [wife] PAYEE after such final judgment, must modify
such final judgment and any orders made with respect thereto by annull-
ing the provisions of such final judgment or orders, or of both, direct-
ing payments of money for the support of the [wife] PAYEE. The court in
its discretion upon application of the [husband] PAYOR on notice, upon
proof that the [wife] PAYEE is habitually living with another [man]
PERSON and holding HIMSELF OR herself out as [his wife] THE SPOUSE OF
SUCH OTHER PERSON, although not married to such [man] OTHER PERSON, may
S. 7266--A 15
modify such final judgment and any orders made with respect thereto by
annulling the provisions of such final judgment or orders or of both,
directing payment of money for the support of such [wife] PAYEE.
S 8. This act shall take effect on the sixtieth day after it shall
have become a law.
Comments
Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.
Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.
Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.