Assembly Bill A10984

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 7740--A                                           A. 10984--A
    Cal. No. 575

                      S E N A T E - A S S E M B L Y

                               May 5, 2010
                               ___________

IN SENATE -- Introduced by Sens. HASSELL-THOMPSON, ADAMS, BRESLIN, HUNT-
  LEY,  KRUEGER,  MONTGOMERY,  OPPENHEIMER,  PERKINS,  SAMPSON,  SAVINO,
  SCHNEIDERMAN, SQUADRON, STAVISKY, STEWART-COUSINS --  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

IN ASSEMBLY -- Introduced by M. of A. PAULIN -- read once  and  referred
  to  the  Committee on Judiciary -- committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the domestic  relations  law,  in  relation  to  interim
  spousal  support  and  post-marital  income obligations; and to repeal
  certain provisions of such law relating thereto

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  6  of  part B of section 236 of the domestic
relations law is REPEALED and a new subdivision 6 is added  to  read  as
follows:
  6.  INTERIM  SPOUSAL SUPPORT AND POST-MARITAL INCOME. A.  EXCEPT WHERE
THE PARTIES HAVE ENTERED INTO AN AGREEMENT PURSUANT TO SUBDIVISION THREE
OF THIS PART PROVIDING FOR ALIMONY, MAINTENANCE OR POST-MARITAL  INCOME,
IN ANY MATRIMONIAL ACTION THE COURT MAY ORDER INTERIM SPOUSAL SUPPORT 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 INTERIM SPOUSAL SUPPORT IS GRANTED LACKS SUFFICIENT PROP-
ERTY AND INCOME TO PROVIDE FOR HIS OR HER REASONABLE NEEDS, WHETHER  THE
OTHER PARTY HAS SUFFICIENT PROPERTY OR INCOME TO PROVIDE FOR THE REASON-
ABLE  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 INTERIM SPOUSAL
SUPPORT DUE SHALL BE PAID IN ONE SUM OR  PERIODIC  SUMS,  AS  THE  COURT
SHALL DIRECT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD17166-08-0

S. 7740--A                          2                        A. 10984--A

  B.  (1) EXCEPT WHERE THE PARTIES HAVE ENTERED INTO AN AGREEMENT PURSU-
ANT TO SUBDIVISION THREE OF THIS PART PROVIDING FOR ALIMONY, MAINTENANCE
OR POST-MARITAL INCOME, THE COURT SHALL MAKE ITS AWARD FOR  POST-MARITAL
INCOME PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH.
  (2)  FOR PURPOSES OF THIS SUBDIVISION, 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) "LENGTH OF MARRIAGE" SHALL  MEAN  THE  PERIOD  FROM  THE  DATE  OF
MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
  (D) "INCOME" SHALL MEAN:
  (I)  ALL FORMS OF 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;
  (II)  INCOME  FROM  INCOME  PRODUCING  PROPERTY  DISTRIBUTED  OR TO BE
DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
  (E) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING FIVE HUNDRED  THOUSAND
DOLLARS  OF  THE PAYOR'S ANNUAL INCOME. THE AMOUNT OF FIVE HUNDRED THOU-
SAND DOLLARS SHALL INCREASE OR DECREASE ON MARCH FIRST OF EACH  YEAR  BY
ANY CHANGE IN THE COST OF LIVING AS DEFINED IN THE ANNUAL CONSUMER PRICE
INDEX-ALL  URBAN  CONSUMERS, NEW YORK, NEW YORK-NORTHEASTERN NEW JERSEY,
AS PUBLISHED BY THE BUREAU OF LABOR STATISTICS OF THE U.S. DEPARTMENT OF
LABOR.
  (F) "GUIDELINE AMOUNT" SHALL MEAN THE SUM DERIVED BY  THE  APPLICATION
OF SUBPARAGRAPH THREE OF THIS PARAGRAPH.
  (G)  "GUIDELINE  DURATION" SHALL MEAN THE DURATIONAL PERIOD DETERMINED
BY THE APPLICATION OF SUBPARAGRAPH FOUR OF THIS PARAGRAPH.
  (H) "PRESUMPTIVE AWARD" SHALL MEAN THE GUIDELINE AMOUNT FOR THE GUIDE-
LINE DURATION PRIOR TO THE COURT'S APPLICATION OF ANY ADJUSTMENT FACTORS
AS PROVIDED IN CLAUSE (A) OF SUBPARAGRAPH FIVE OF THIS PARAGRAPH.
  (I) "POST-MARITAL INCOME" SHALL MEAN THE SUM TO BE PAID FOR  A  DESIG-
NATED  PERIOD OF TIME PURSUANT TO A FINAL COURT ORDER OR DECREE DISSOLV-
ING OR ANNULLING A MARRIAGE, DECLARING THE NULLITY OF A MARRIAGE,  OR  A
VALID AGREEMENT BETWEEN THE PARTIES, BY ONE PARTY TO THE OTHER.
  (J)  "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.
  (3) THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT IN ACCORDANCE  WITH
THE  PROVISIONS OF THIS SUBPARAGRAPH AFTER DETERMINING THE INCOME OF THE
PARTIES:
  (A) WHERE THE PAYOR'S INCOME IS UP TO AND INCLUDING THE INCOME CAP:
  (I) 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.
  (II) 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.
  (III) THE COURT SHALL SUBTRACT THE INCOME OF THE PAYEE FROM THE AMOUNT
DERIVED FROM SUBCLAUSE (II) OF THIS CLAUSE.
  (IV) THE GUIDELINE AMOUNT SHALL BE THE LOWER OF THE AMOUNTS DETERMINED
BY  SUBCLAUSES (I) AND (III) OF THIS CLAUSE; IF THE AMOUNT DETERMINED BY
SUBCLAUSE (III) OF THIS CLAUSE IS LESS THAN OR EQUAL TO ZERO, THE GUIDE-
LINE AMOUNT SHALL BE ZERO DOLLARS.
  (B) WHERE THE INCOME OF THE PAYOR EXCEEDS THE INCOME CAP:
  (I) THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT FOR THAT PORTION OF
THE PAYOR'S INCOME THAT IS UP TO AND INCLUDING THE INCOME CAP  ACCORDING

S. 7740--A                          3                        A. 10984--A

TO  CLAUSE  (A)  OF  THIS  SUBPARAGRAPH,  AND, FOR THE PAYOR'S INCOME IN
EXCESS OF THE INCOME CAP,  THE  COURT  SHALL  DETERMINE  ANY  ADDITIONAL
GUIDELINE AMOUNT THROUGH CONSIDERATION OF THE FOLLOWING FACTORS:
  (A) THE LENGTH OF THE MARRIAGE;
  (B) THE SUBSTANTIAL DIFFERENCES IN THE INCOMES OF THE PARTIES;
  (C)  THE  STANDARD  OF  LIVING  OF  THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
  (D) THE AGE AND HEALTH OF THE PARTIES;
  (E) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES;
  (F) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
  (G) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
  (H) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMONIAL
ACTION WITHOUT FAIR CONSIDERATION;
  (I) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD  OR  A
PRE-DIVORCE SEPARATE HOUSEHOLD;
  (J)  ACTS BY ONE PARTY AGAINST ANOTHER THAT CONSTITUTE EGREGIOUS FAULT
LIKELY TO SHOCK THE CONSCIENCE;
  (K) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (L) 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;
  (M) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE  TO
AGE OR ABSENCE FROM THE WORKFORCE;
  (N)  THE  NEED  TO  PAY  FOR  EXCEPTIONAL  ADDITIONAL EXPENSES FOR THE
CHILD/CHILDREN, INCLUDING BUT NOT LIMITED TO, SCHOOLING,  DAY  CARE  AND
MEDICAL TREATMENT;
  (O) THE TAX CONSEQUENCES TO EACH PARTY;
  (P) THE EQUITABLE DISTRIBUTION OF THE MARITAL PROPERTY;
  (Q) THE REDUCED OR LOST LIFETIME EARNING CAPACITY OF THE PARTY SEEKING
POST-MARITAL INCOME AS A RESULT OF HAVING FOREGONE OR DELAYED EDUCATION,
TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE;
  (R)  THE  CONTRIBUTIONS AND SERVICES OF THE PARTY SEEKING POST-MARITAL
INCOME AS A SPOUSE, PARENT, WAGE EARNER AND HOMEMAKER AND TO THE  CAREER
OR CAREER POTENTIAL OF THE OTHER PARTY; AND
  (S)  ANY  OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
  (II) IN ANY DECISION MADE PURSUANT TO THIS CLAUSE, THE COURT SHALL SET
FORTH THE FACTORS IT CONSIDERED AND THE REASONS FOR ITS  DECISION.  SUCH
WRITTEN ORDER MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
  (C)  NOTWITHSTANDING  THE  PROVISIONS  OF THIS SUBPARAGRAPH, WHERE THE
GUIDELINE AMOUNT WOULD REDUCE THE PAYOR'S INCOME BELOW THE  SELF-SUPPORT
RESERVE  FOR  A  SINGLE  PERSON, THE PRESUMPTIVE AMOUNT OF THE GUIDELINE
AMOUNT 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-MARITAL  INCOME
IS AWARDED.
  (4) (A) THE COURT SHALL DETERMINE THE GUIDELINE DURATION IN ACCORDANCE
WITH THE FOLLOWING SCHEDULE:
LENGTH OF THE MARRIAGE             % OF THE LENGTH OF THE MARRIAGE FOR
                                   WHICH POST-MARITAL INCOME 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%

S. 7740--A                          4                        A. 10984--A

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                 PERMANENT
  (B) NOTWITHSTANDING THE PROVISIONS OF CLAUSE (A) OF THIS SUBPARAGRAPH,
POST-MARITAL INCOME SHALL TERMINATE UPON THE DEATH OF EITHER PARTY.
  (5) (A) THE COURT SHALL ORDER THE PRESUMPTIVE AWARD IN ACCORDANCE WITH
SUBPARAGRAPHS  THREE  AND FOUR OF THIS PARAGRAPH, UNLESS THE COURT FINDS
THAT THE PRESUMPTIVE AWARD IS UNJUST OR INAPPROPRIATE  AND  ADJUSTS  THE
PRESUMPTIVE  AWARD ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING
FACTORS:
  (I) THE STANDARD OF LIVING  OF  THE  PARTIES  ESTABLISHED  DURING  THE
MARRIAGE;
  (II) THE AGE AND HEALTH OF THE PARTIES;
  (III) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES;
  (IV) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
  (V) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
  (VI) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMONI-
AL ACTION WITHOUT FAIR CONSIDERATION;
  (VII) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
  (VIII)  ACTS  BY  ONE  PARTY AGAINST ANOTHER THAT CONSTITUTE EGREGIOUS
FAULT LIKELY TO SHOCK THE CONSCIENCE;
  (IX) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (X) 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;
  (XI) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE TO
AGE OR ABSENCE FROM THE WORKFORCE;
  (XII) THE NEED TO PAY FOR  EXCEPTIONAL  ADDITIONAL  EXPENSES  FOR  THE
CHILD/CHILDREN,  INCLUDING  BUT  NOT LIMITED TO, SCHOOLING, DAY CARE AND
MEDICAL TREATMENT;
  (XIII) THE TAX CONSEQUENCES TO EACH PARTY;
  (XIV) THE EQUITABLE DISTRIBUTION OF THE MARITAL PROPERTY;
  (XV) THE REDUCED OR LOST LIFETIME EARNING CAPACITY OF THE PARTY  SEEK-
ING POST-MARITAL INCOME AS A RESULT OF HAVING FOREGONE OR DELAYED EDUCA-
TION, TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE;
  (XVI) THE CONTRIBUTIONS AND SERVICES OF THE PARTY SEEKING POST-MARITAL
INCOME  AS A SPOUSE, PARENT, WAGE EARNER AND HOMEMAKER AND TO THE CAREER
OR CAREER POTENTIAL OF THE OTHER PARTY; AND
  (XVII) ANY OTHER FACTOR WHICH THE COURT SHALL  EXPRESSLY  FIND  TO  BE
JUST AND PROPER.
  (B)  WHERE  THE  COURT  FINDS  THAT THE PRESUMPTIVE AWARD IS UNJUST OR
INAPPROPRIATE AND THE COURT ADJUSTS THE PRESUMPTIVE  AWARD  PURSUANT  TO
THIS  SUBPARAGRAPH,  THE  COURT SHALL SET FORTH, IN A WRITTEN ORDER, THE
AMOUNT OF THE UNADJUSTED PRESUMPTIVE AWARD, THE FACTORS  IT  CONSIDERED,
AND  THE  REASONS  THAT  THE COURT ADJUSTED THE PRESUMPTIVE AWARD.  SUCH
WRITTEN ORDER SHALL NOT BE WAIVED BY EITHER PARTY OR COUNSEL.

S. 7740--A                          5                        A. 10984--A

  (C) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED,  THE  COURT  SHALL
NOT  ENTER  A  POST-MARITAL INCOME ORDER OR JUDGMENT UNLESS THE UNREPRE-
SENTED PARTY OR PARTIES HAVE BEEN INFORMED OF THE PRESUMPTIVE AWARD.
  (6)  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
OR JUDGMENT 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 POST-MARITAL
INCOME.  IN  THE  EVENT THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM
THE PRESUMPTIVE AWARD, THE AGREEMENT OR  STIPULATION  MUST  SPECIFY  THE
AMOUNT  THAT  SUCH  PRESUMPTIVE  AWARD 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   PROVIDED   SUCH  AGREEMENTS  OR  STIPULATIONS  COMPLY  WITH  THE
PROVISIONS  OF  THIS  PARAGRAPH.    THE  COURT  SHALL,  HOWEVER,  RETAIN
DISCRETION WITH RESPECT TO POST-MARITAL INCOME PURSUANT TO THIS SECTION.
ANY  COURT  ORDER OR JUDGMENT INCORPORATING A VALIDLY EXECUTED AGREEMENT
OR STIPULATION WHICH DEVIATES FROM THE PRESUMPTIVE AWARD SHALL SET FORTH
THE COURT'S REASONS FOR SUCH DEVIATION.
  (7) IN ADDITION TO FINANCIAL DISCLOSURE REQUIRED IN THIS SECTION,  THE
COURT  MAY  REQUIRE  THAT  THE INCOME AND/OR EXPENSES OF EITHER PARTY BE
VERIFIED WITH DOCUMENTATION INCLUDING, BUT  NOT  LIMITED  TO,  PAST  AND
PRESENT  INCOME  TAX RETURNS, EMPLOYER STATEMENTS, PAY STUBS, CORPORATE,
BUSINESS, OR PARTNERSHIP BOOKS AND RECORDS, CORPORATE AND  BUSINESS  TAX
RETURNS,  AND  RECEIPTS FOR EXPENSES OR SUCH OTHER MEANS OF VERIFICATION
AS THE COURT DETERMINES APPROPRIATE. NOTHING  HEREIN  SHALL  AFFECT  ANY
PARTY'S  RIGHT TO PURSUE DISCOVERY PURSUANT TO THIS CHAPTER OR THE CIVIL
PRACTICE LAW AND RULES.
  (8) WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
WITH INSUFFICIENT EVIDENCE TO DETERMINE GROSS INCOME,  THE  COURT  SHALL
ORDER  THE  POST-MARITAL  INCOME  OBLIGATION 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 RETROACTIVE-
LY  MODIFIED  UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON A
SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
  (9) POST-MARITAL INCOME MAY BE MODIFIED PURSUANT  TO  PARAGRAPH  B  OF
SUBDIVISION NINE OF THIS SECTION.
  (10) IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAIN-
TENANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVI-
SION,  BROUGHT  PURSUANT TO THIS ARTICLE, THE POST-MARITAL INCOME STAND-
ARDS SET FORTH IN THIS SUBDIVISION SHALL  NOT  CONSTITUTE  A  CHANGE  OF
CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
  S  2.  This  act  shall take effect on the sixtieth day after it shall
have become a law and shall apply to matrimonial actions commenced on or
after such effective date.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                10984--B

                          I N  A S S E M B L Y

                               May 5, 2010
                               ___________

Introduced  by  M.  of A. PAULIN, WEINSTEIN -- read once and referred to
  the Committee on Judiciary  --  committee  discharged,  bill  amended,
  ordered  reprinted  as  amended  and  recommitted to said committee --
  again reported from said committee with amendments, ordered  reprinted
  as amended and recommitted to said committee

AN ACT to amend the domestic relations law, in relation to providing for
  temporary maintenance awards, and revising the factors for final main-
  tenance awards; and directing the law revision commission to study the
  economic consequences of divorce and maintenance actions

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Part B of section 236 of  the  domestic  relations  law  is
amended by adding a new subdivision 5-a 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 HUNDRED  THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY  THIRTY-FIRST,  TWO  THOUSAND TWELVE AND EVERY TWO YEARS THEREAFTER,
THE PAYOR'S ANNUAL INCOME AMOUNT SHALL INCREASE BY THE  PRODUCT  OF  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD17166-10-0

A. 10984--B                         2

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 TWO YEAR PERIOD 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
DERIVED BY THE APPLICATION OF PARAGRAPH C 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 MAINTE-
NANCE  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
VIOLENCE  AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;

A. 10984--B                         3

  (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)  IN  ANY  DECISION  MADE  PURSUANT TO THIS SUBPARAGRAPH, THE COURT
SHALL SET FORTH THE FACTORS IT CONSIDERED AND THE REASONS FOR ITS  DECI-
SION. SUCH WRITTEN ORDER MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
  (3) NOTWITHSTANDING THE PROVISIONS OF THIS PARAGRAPH, WHERE THE GUIDE-
LINE  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 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 REBUTT-
ABLE PRESUMPTION THAT NO TEMPORARY MAINTENANCE IS AWARDED.
  D. THE COURT SHALL DETERMINE THE GUIDELINE DURATION OF TEMPORARY MAIN-
TENANCE BY CONSIDERING THE LENGTH OF THE MARRIAGE. TEMPORARY MAINTENANCE
SHALL  TERMINATE  UPON THE ISSUANCE OF THE FINAL AWARD OF MAINTENANCE OR
THE DEATH OF EITHER PARTY, WHICHEVER OCCURS FIRST.
  E. (1) THE COURT SHALL ORDER THE PRESUMPTIVE AWARD OF TEMPORARY  MAIN-
TENANCE  IN  ACCORDANCE  WITH  PARAGRAPHS C AND D   OF THIS SUBDIVISION,
UNLESS THE COURT FINDS THAT THE PRESUMPTIVE AWARD IS UNJUST OR  INAPPRO-
PRIATE  AND  ADJUSTS  THE  PRESUMPTIVE  AWARD  OF  TEMPORARY MAINTENANCE
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) THE EARNING CAPACITY OF THE PARTIES;
  (D) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
  (E) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
  (F) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMONIAL
ACTION WITHOUT FAIR CONSIDERATION;
  (G)  THE  EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
  (H) 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) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;

A. 10984--B                         4

  (J) 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  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) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE  CHILD
OR  CHILDREN,  INCLUDING,  BUT  NOT  LIMITED TO, SCHOOLING, DAY CARE AND
MEDICAL TREATMENT;
  (M) THE TAX CONSEQUENCES TO EACH PARTY;
  (N) MARITAL PROPERTY SUBJECT TO DISTRIBUTION PURSUANT  TO  SUBDIVISION
FIVE OF THIS PART;
  (O)  THE  REDUCED OR LOST EARNING CAPACITY OF THE PARTY SEEKING TEMPO-
RARY MAINTENANCE 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)  ANY  OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
  (2) WHERE THE COURT FINDS THAT  THE  PRESUMPTIVE  AWARD  OF  TEMPORARY
MAINTENANCE  IS  UNJUST  OR  INAPPROPRIATE  AND  THE  COURT  ADJUSTS THE
PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE PURSUANT TO  THIS  PARAGRAPH,
THE  COURT  SHALL SET FORTH, IN A WRITTEN ORDER, THE AMOUNT OF THE UNAD-
JUSTED PRESUMPTIVE  AWARD  OF  TEMPORARY  MAINTENANCE,  THE  FACTORS  IT
CONSIDERED,  AND  THE  REASONS  THAT  THE COURT ADJUSTED THE PRESUMPTIVE
AWARD OF TEMPORARY MAINTENANCE. SUCH WRITTEN ORDER 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  UNREPRESENTED  PARTY
OR  PARTIES  HAVE  BEEN  INFORMED  OF THE PRESUMPTIVE AWARD 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.  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

A. 10984--B                         5

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.
  H. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE  OR  ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVI-
SION, BROUGHT PURSUANT TO THIS ARTICLE, THE TEMPORARY MAINTENANCE GUIDE-
LINES 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.
  S 2. Subdivision 6 of part B of section 236 of the domestic  relations
law,  as  amended by chapter 884 of the laws of 1986, subparagraph 10 as
amended, subparagraph 11 as added and subparagraph 12 of paragraph a  as
renumbered  by  chapter 229 of the laws of 2009, paragraph d as added by
chapter 415 of the laws of 1992, is amended to read as follows:
  6. [Maintenance] 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  [temporary  maintenance  or]  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 there-
for, 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 [duration] LENGTH of the marriage [and];
  (3) the age and health of both parties;
  [(3)] (4) the present and future earning capacity of both parties;
  [(4)]  (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;
  [(5)] (9) reduced or lost lifetime earning capacity of the party seek-
ing  maintenance  as  a  result of having foregone or delayed education,
training, employment, or career opportunities during the marriage;
  [(6)] (10) the presence of children of the marriage in the  respective
homes of the parties;

A. 10984--B                         6

  [(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;
  [(8)] (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;
  [(9)]  (17)  the  wasteful  dissipation  of marital property by either
spouse;
  [(10) any] (18) THE transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
  [(11)] (19) the loss of health insurance benefits upon dissolution  of
the marriage, AND THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE
PARTIES; and
  [(12)]  (20)  any other factor which the court shall expressly find to
be just and proper.
  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)] B of subdivision nine of [section two hundred thirty-six 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.
  S 3. Part B of section 236 of the domestic relations law is amended by
adding a new subdivision 6-a to read as follows:
  6-A. LAW REVISION COMMISSION STUDY. A. THE  LEGISLATURE  HEREBY  FINDS
AND  DECLARES  IT  TO BE THE POLICY OF THE STATE THAT IT IS NECESSARY TO
ACHIEVE EQUITABLE OUTCOMES WHEN FAMILIES DIVORCE AND IT IS IMPORTANT  TO
ENSURE  THAT THE ECONOMIC CONSEQUENCES OF A DIVORCE ARE FAIRLY SHARED BY
DIVORCING COUPLES. SERIOUS CONCERNS HAVE BEEN RAISED THAT THE  IMPLEMEN-
TATION OF NEW YORK STATE'S MAINTENANCE LAWS HAVE NOT RESULTED IN EQUITA-
BLE  RESULTS.  MAINTENANCE IS OFTEN NOT GRANTED AND WHERE IT IS GRANTED,
THE RESULTS ARE INCONSISTENT  AND  UNPREDICTABLE.  THIS  RAISES  SERIOUS
CONCERNS  ABOUT  THE  ABILITY OF OUR CURRENT MAINTENANCE LAWS TO ACHIEVE
EQUITABLE AND FAIR OUTCOMES.
  THE LEGISLATURE FURTHER FINDS A COMPREHENSIVE REVIEW OF THE PROVISIONS
OF OUR STATE'S MAINTENANCE LAWS SHOULD BE UNDERTAKEN. IT HAS BEEN THIRTY
YEARS SINCE THE LEGISLATURE SIGNIFICANTLY REFORMED OUR  STATE'S  DIVORCE
LAWS  BY  ENACTING EQUITABLE DISTRIBUTION OF MARITAL PROPERTY AND INTRO-
DUCED THE CONCEPT OF MAINTENANCE TO REPLACE ALIMONY. CONCERNS  THAT  THE
IMPLEMENTATION  OF  OUR  MAINTENANCE LAWS HAVE NOT RESULTED IN EQUITABLE
RESULTS COMPEL THE NEED FOR A REVIEW OF THESE LAWS.
  B. THE LAW REVISION COMMISSION IS HEREBY DIRECTED TO:
  (1) REVIEW AND ASSESS THE ECONOMIC  CONSEQUENCES  OF  DIVORCE  ON  THE
PARTIES;

A. 10984--B                         7

  (2)  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  ENSURING THAT THE ECONOMIC CONSEQUENCES OF A DIVORCE ARE
FAIRLY AND EQUITABLY SHARED BY THE DIVORCING COUPLE; AND
  (3) MAKE RECOMMENDATIONS TO THE LEGISLATURE, INCLUDING  SUCH  PROPOSED
REVISIONS OF SUCH LAWS AS IT DETERMINES NECESSARY TO ACHIEVE THESE GOALS
AND OBJECTIVES.
  C.  THE LAW REVISION COMMISSION SHALL MAKE A PRELIMINARY REPORT TO THE
LEGISLATURE AND THE GOVERNOR  OF  ITS  FINDINGS,  CONCLUSIONS,  AND  ANY
RECOMMENDATIONS  NOT  LATER  THAN NINE MONTHS FROM THE EFFECTIVE DATE OF
THIS SUBDIVISION, AND A FINAL REPORT OF ITS  FINDINGS,  CONCLUSIONS  AND
RECOMMENDATIONS NOT LATER THAN DECEMBER THIRTY-FIRST, TWO THOUSAND ELEV-
EN.
  S  4.  Paragraph  a  of  subdivision 1 of part B of section 236 of the
domestic relations law, as amended by chapter 884 of the laws  of  1986,
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 [subdivision] 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 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 5. The chief administrator of the courts shall promulgate all  rules
necessary to implement the provisions of this act.
  S  6.  This act shall take effect immediately; provided, however, that
sections one, two and four of this act shall take effect on the sixtieth
day after this act shall have become a law and shall apply to matrimoni-
al actions commenced on or after the effective date of such sections.