Assembly Bill A2580D

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

                                  2580

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 20, 2009
                               ___________

Introduced  by  M.  of  A.  WEINSTEIN,  PAULIN, CYMBROWITZ, EDDINGTON --
  Multi-Sponsored by -- M.  of A. COOK, DESTITO, FIELDS, MILLMAN,  WEIS-
  ENBERG -- read once and referred to the Committee on Judiciary

AN  ACT to amend the domestic relations law and the family court act, in
  relation to enacting the "Divorce Reform Act of 2009"; and  to  repeal
  paragraph  c of subdivision 5 of part B of section 236 of the domestic
  relations law relating to disposition of property in certain  matrimo-
  nial actions

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

  Section 1. Short title. This act shall be known and may  be  cited  as
the "Divorce Reform Act of 2009".
  S  2.  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 six of this part,  to  be  paid  at  fixed
intervals  [for  a  definite  or indefinite] EITHER PERMANENTLY OR FOR A
FIXED 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)] B of subdivi-
sion nine of [section two hundred thirty-six of] this  part  or  section
two  hundred  forty-eight of this chapter. FAILURE TO STATE IN AN AGREE-
MENT BETWEEN THE PARTIES, OR IN A  COURT  ORDER,  THAT  THE  RECIPIENT'S
RE-MARRIAGE  SHALL  TERMINATE AN AWARD OF MAINTENANCE, SHALL NOT PREVENT
THE TERMINATION OF SUCH MAINTENANCE.
  S 3. Paragraph c of subdivision 5 of part B  of  section  236  of  the
domestic  relations  law  is  REPEALED and a new paragraph c is added to
read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01545-02-9

              

A. 2580                             2

  C. (1) IN MARRIAGES OF FIVE YEARS DURATION OR LONGER, THERE SHALL BE A
PRESUMPTION THAT THE MARITAL  PROPERTY  SHALL  BE  DISTRIBUTED  EQUALLY,
UNLESS  A  PARTY  PRESENTS  SUFFICIENT  EVIDENCE  TO  ESTABLISH THAT THE
DISTRIBUTION SHALL BE OTHER THAN EQUAL, BASED UPON CONSIDERATION OF  THE
FACTORS  SET  FORTH IN PARAGRAPH D OF THIS SUBDIVISION AND REGARDLESS OF
THE PERSON WHO HAS TITLE OR THE FORM IN WHICH TITLE IS HELD.
  (2) IN MARRIAGES OF LESS THAN FIVE YEARS  DURATION,  THE  COURT  SHALL
ORDER  AN  EQUITABLE  DISTRIBUTION  OF  MARITAL PROPERTY CONSIDERING THE
CIRCUMSTANCES OF THE CASE AND OF THE RESPECTIVE PARTIES AND  BASED  UPON
THE FACTORS ENUMERATED IN PARAGRAPH D OF THIS SUBDIVISION AND REGARDLESS
OF THE PERSON WHO HAS TITLE OR THE FORM IN WHICH TITLE IS HELD.
  (3) SOLELY FOR PURPOSES OF THIS PARAGRAPH THE DURATION OF THE MARRIAGE
SHALL  BE  MEASURED FROM THE DATE OF THE MARRIAGE TO THE DATE ON WHICH A
MATRIMONIAL ACTION IS COMMENCED, OR, IF JUSTICE REQUIRES,  TO  THE  DATE
UPON  WHICH  THE  HUSBAND  AND  WIFE HAVE COMMENCED TO LIVE SEPARATE AND
APART IN DIFFERENT HABITATIONS ON A PERMANENT BASIS.
  S 4. Subparagraph 2 of paragraph d of  subdivision  5  of  part  B  of
section  236  of  the domestic relations law, as added by chapter 281 of
the laws of 1980, is amended to read as follows:
  (2) the duration of the marriage  and  the  age  and  health  of  both
parties AND THE POST-DIVORCE STANDARDS OF LIVING OF THE PARTIES;
  S  5. Subparagraphs 5, 6, 7, 8, 9, 10, 11, 12 and 13 of paragraph d of
subdivision 5 of part B of section 236 of the  domestic  relations  law,
subparagraph  13  as  renumbered by chapter 884 of the laws of 1986, are
renumbered subparagraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14,  and  a  new
subparagraph 5 is added to read as follows:
  (5)  THE  LOSS  OF  HEALTH  INSURANCE BENEFITS UPON DISSOLUTION OF THE
MARRIAGE;
  S 6. Paragraph e of subdivision 5 of part B  of  section  236  of  the
domestic  relations law, as added by chapter 281 of the laws of 1980, is
amended to read as follows:
  e. In any action in which the court [shall determine] DETERMINES  that
[an  equitable]  distribution  [is  appropriate but would be] OF MARITAL
PROPERTY IS impractical or burdensome or where the  distribution  of  an
interest in a business, corporation or profession [would be] IS contrary
to  law, the court in lieu of such [equitable] distribution shall make a
distributive award [in order to  achieve  equity  between  the  parties]
PURSUANT  TO  PARAGRAPH  C  OF  THIS  SUBDIVISION.    The  court, in its
discretion, also may make a distributive award to supplement, facilitate
or effectuate a distribution of marital property.
  S 7. The opening paragraph of paragraph a and paragraph c of  subdivi-
sion  6  of  part  B  of  section  236 of the domestic relations law, as
amended by chapter 884 of the laws of  1986,  are  amended  to  read  as
follows:
  Except  where  the  parties have entered into an agreement pursuant to
subdivision three of this part providing for maintenance, in any  matri-
monial  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 respec-
tive parties. Such order]. IN THOSE SITUATIONS WHERE THE  PARTY  SEEKING
MAINTENANCE  IS UNABLE TO MAINTAIN THE STANDARD OF LIVING OF THE PARTIES
ESTABLISHED DURING THE MARRIAGE DUE TO THE  DURATION  OF  THE  MARRIAGE,

A. 2580                             3

AGE,  HEALTH,  OR  REDUCED OR LOST LIFETIME EARNING CAPACITY, OR LOSS OF
HEALTH INSURANCE BENEFITS, OR THE NEEDS OF MINOR OR DEPENDENT  CHILDREN,
THE  COURT  SHALL  ORDER PERMANENT MAINTENANCE, SUBJECT TO MODIFICATION,
PURSUANT  TO  PARAGRAPH B OF SUBDIVISION NINE OF THIS PART, IN AN AMOUNT
SUFFICIENT TO ELIMINATE THE DISPARITY IN THE  POST-DIVORCE  STANDARD  OF
LIVING  OF  THE PARTIES.  ORDERS OF MAINTENANCE 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 mainte-
nance the court shall consider:
  c. [The court may award permanent maintenance, but an award of]  WHERE
THE  COURT ORDERS PERMANENT MAINTENANCE OR MAINTENANCE FOR A FIXED PERI-
OD, 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)] B of subdivision nine of [section two hundred thir-
ty-six of] this part or section two hundred forty-eight of this chapter.
FAILURE TO STATE IN AN AGREEMENT BETWEEN THE  PARTIES,  OR  IN  A  COURT
ORDER,  THAT  THE  RECIPIENT'S  RE-MARRIAGE  SHALL TERMINATE AN AWARD OF
MAINTENANCE, SHALL NOT PREVENT THE TERMINATION OF SUCH MAINTENANCE.
  S 8. Subparagraph 10 of paragraph a of subdivision  6  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:
  (10) any transfer or encumbrance made in contemplation of a matrimoni-
al action without fair consideration; [and]
  S 9. Subparagraph 11 of paragraph a of subdivision  6  of  part  B  of
section 236 of the domestic relations law is renumbered subparagraph 12,
and a new subparagraph 11 is added to read as follows:
  (11)  THE  LOSS  OF  HEALTH INSURANCE BENEFITS UPON DISSOLUTION OF THE
MARRIAGE; AND
  S 10. Section 170 of the domestic relations law is amended by adding a
new subdivision 7 to read as follows:
   (7) IRRECONCILABLE DIFFERENCES HAVE ARISEN BETWEEN THE  PARTIES  SUCH
THAT THERE IS NO REASONABLE PROSPECT OF RECONCILIATION. THERE SHALL BE A
PRESUMPTION  THAT,  AFTER  TWELVE CONSECUTIVE MONTHS OF SEPARATE HABITA-
TION, NO REASONABLE PROSPECT OF RECONCILIATION EXISTS. NOTHING  IN  THIS
SUBDIVISION  SHALL  RELIEVE A PARTY FROM HIS OR HER OBLIGATION TO COMPLY
SUBSTANTIALLY WITH ALL THE TERMS AND CONDITIONS OF ANY DECREE  OR  JUDG-
MENT  OF  SEPARATION  PURSUANT TO SUBDIVISION FIVE OF THIS SECTION OR OF
ANY WRITTEN AGREEMENT OF SEPARATION PURSUANT TO SUBDIVISION SIX OF  THIS
SECTION.  THE  COURT  SHALL  NOT  AWARD SUMMARY JUDGMENT ON ANY CAUSE OF
ACTION BROUGHT PURSUANT TO THIS SUBDIVISION. IN THE ABSENCE OF  A  VALID
WRITTEN  AND  FULLY  EXECUTED  AGREEMENT  OF  SEPARATION, JUDGMENT IN AN
ACTION BROUGHT PURSUANT TO THIS SUBDIVISION SHALL NOT BE  GRANTED  UNTIL
THE  ECONOMIC  ISSUES BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO,
THE DISTRIBUTION OF MARITAL PROPERTY, SPOUSAL SUPPORT AND CHILD SUPPORT,
AND CUSTODY AND VISITATION HAVE BEEN DECIDED BY THE COURT  AND  INCORPO-
RATED IN THE FINAL JUDGMENT OF DIVORCE.
  S  11.  Subdivisions  (a)  and  (b)  of  section  237  of the domestic
relations law, subdivision (a) as amended by chapter 482 of the laws  of
1987  and subdivision (b) as amended by chapter 892 of the laws of 1986,
are amended to read as follows:
  (a) In any action or proceeding brought (1) to annul a marriage or  to
declare  the nullity of a void marriage, or (2) for a separation, or (3)
for a divorce, or (4) to declare the validity or nullity of  a  judgment
of divorce rendered against a spouse who was the defendant in any action

A. 2580                             4

outside  the  State  of  New York and did not appear therein where  such
spouse asserts the nullity of such foreign judgment, [or] (5) TO  OBTAIN
MAINTENANCE  OR DISTRIBUTION OF PROPERTY FOLLOWING A FOREIGN JUDGMENT OF
DIVORCE,  OR  (6) to enjoin the prosecution in any other jurisdiction of
an action for a divorce, the court may direct either spouse   or,  where
an  action  for annulment is maintained after the death of a spouse, may
direct the person or persons maintaining the action, to pay [such sum or
sums of money] COUNSEL FEES AND FEES AND EXPENSES OF EXPERTS directly to
the  attorney of the other spouse to  enable  [that  spouse]  THE  OTHER
PARTY  to carry on or defend the action or proceeding as, in the court's
discretion, justice requires, having regard to the circumstances of  the
case  and of the respective parties. [Such direction must be made in the
final judgment in such action or proceeding, or by one  or  more  orders
from time to time before final judgment, or by both such order or orders
and  the final judgment; provided, however, such direction shall be made
prior to final judgment where it is shown that such order is required to
enable the petitioning party to  properly  proceed]  THERE  SHALL  BE  A
REBUTTABLE  PRESUMPTION  THAT  COUNSEL FEES SHALL BE AWARDED TO THE LESS
MONIED SPOUSE. IN EXERCISING THE COURT'S  DISCRETION,  THE  COURT  SHALL
SEEK  TO  ASSURE  THAT  EACH PARTY SHALL BE EQUALLY REPRESENTED AND THAT
WHERE FEES AND EXPENSES ARE TO BE AWARDED, THEY SHALL BE  AWARDED  ON  A
TIMELY  BASIS,  PENDENTE  LITE,  SO AS TO ENABLE ADEQUATE REPRESENTATION
FROM THE COMMENCEMENT OF THE PROCEEDING.  APPLICATIONS FOR THE AWARD  OF
FEES  AND EXPENSES MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDG-
MENT. BOTH PARTIES TO THE ACTION  OR  PROCEEDING  AND  THEIR  RESPECTIVE
ATTORNEYS,  SHALL  FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINAN-
CIAL AGREEMENT BETWEEN THE PARTY AND THE ATTORNEY. SUCH AFFIDAVIT  SHALL
INCLUDE  THE  AMOUNT  OF  ANY RETAINER, THE AMOUNTS PAID AND STILL OWING
THEREUNDER, THE HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID,
OR TO BE PAID, ANY EXPERTS, AND ANY ADDITIONAL COSTS,  DISBURSEMENTS  OR
EXPENSES.  IN  FIXING FEES AND EXPENSES WHICH THE COURT DETERMINES SHALL
BE PAID BY EITHER PARTY TO ENABLE THE OTHER PARTY TO CARRY ON OR  DEFEND
THE  ACTION OR PROCEEDING, THE COURT SHALL FIX THE AMOUNT TO BE PAID FOR
SUCH PROSECUTION OR DEFENSE OF THE ACTION OR  PROCEEDING  AT  AN  AMOUNT
EQUAL  TO  THE  HOURLY  RATE  ORDINARILY  AND CUSTOMARILY CHARGED BY THE
ATTORNEY FOR THE PARTY REQUIRED TO  PAY  SUCH  COUNSEL  FEES;  PROVIDED,
HOWEVER,  IF  THE  HOURLY RATE ORDINARILY AND CUSTOMARILY CHARGED BY THE
ATTORNEY FOR THE PARTY PETITIONING FOR SUCH AWARD IS  LOWER,  SUCH  FEES
SHALL  BE FIXED AT THE HOURLY RATE ORDINARILY AND CUSTOMARILY CHARGED BY
SUCH ATTORNEY FOR SUCH LEGAL SERVICES. THE FOREGOING PROVISION SHALL NOT
BAR AN AWARD FOR COUNSEL FEES AT A RATE HIGHER THAN THE FEES CHARGED  BY
THE  ATTORNEY  FOR THE PARTY REQUIRED TO PAY SUCH COUNSEL FEES IN APPRO-
PRIATE CIRCUMSTANCES.  Any applications for [counsel] fees and  expenses
may  be  maintained by the attorney for either spouse in his own name in
the same proceeding.  PAYMENT OF ANY RETAINER FEES TO THE  ATTORNEY  FOR
THE PETITIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES
TO AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  (b) Upon any application to ENFORCE, annul or modify an order or judg-
ment for alimony, MAINTENANCE, DISTRIBUTIVE AWARD, DISTRIBUTION OF MARI-
TAL PROPERTY or for custody, visitation, or maintenance of a child, made
as  in  section  two  hundred  thirty-six  or  section two hundred forty
provided, or upon any application by writ of habeas corpus or  by  peti-
tion  and  order to show cause concerning custody, visitation or mainte-
nance of a child, the court may direct a spouse or parent to  pay  [such
sum or sums of money for the prosecution or the defense of] COUNSEL FEES
AND  FEES  AND EXPENSES OF EXPERTS DIRECTLY TO THE ATTORNEY OF THE OTHER

A. 2580                             5

SPOUSE OR PARENT TO ENABLE THE OTHER PARTY TO CARRY  ON  OR  DEFEND  the
application  or  proceeding  by  the  other  spouse or parent as, in the
court's discretion, justice requires, having regard to the circumstances
of  the  case  and  of the respective parties. [With respect to any such
application or proceeding, such direction may be made in  the  order  or
judgment  by  which  the particular application or proceeding is finally
determined, or by one or more orders from time to time before the  final
order  or  judgment, or by both such order or orders and the final order
or judgment] THERE SHALL BE A REBUTTABLE PRESUMPTION THAT  COUNSEL  FEES
SHALL  BE  AWARDED  TO THE LESS MONIED SPOUSE. IN EXERCISING THE COURT'S
DISCRETION; THE COURT SHALL SEEK TO ASSURE  THAT  EACH  PARTY  SHALL  BE
EQUALLY  REPRESENTED AND THAT WHERE FEES AND EXPENSES ARE TO BE AWARDED,
THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE LITE, SO AS TO  ENABLE
ADEQUATE REPRESENTATION FROM THE COMMENCEMENT OF THE PROCEEDING.  APPLI-
CATIONS  FOR  THE  AWARD OF FEES AND EXPENSES MAY BE MADE AT ANY TIME OR
TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES TO THE ACTION OR  PROCEEDING
AND  THEIR  RESPECTIVE ATTORNEYS, SHALL FILE AN AFFIDAVIT WITH THE COURT
DETAILING THE FINANCIAL AGREEMENT, BETWEEN THE PARTY AND  THE  ATTORNEY.
SUCH  AFFIDAVIT  SHALL  INCLUDE  THE AMOUNT OF ANY RETAINER, THE AMOUNTS
PAID AND STILL OWING THEREUNDER, THE HOURLY AMOUNT CHARGED BY THE ATTOR-
NEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS,  AND  ANY  ADDITIONAL
COSTS,  DISBURSEMENTS OR EXPENSES. IN FIXING FEES AND EXPENSES WHICH THE
COURT DETERMINES SHALL BE PAID BY EITHER PARTY TO ENABLE THE OTHER PARTY
TO CARRY ON OR DEFEND THE ACTION OR PROCEEDING, THE COURT SHALL FIX  THE
AMOUNT  TO  BE  PAID  FOR  SUCH  PROSECUTION OR DEFENSE OF THE ACTION OR
PROCEEDING AT AN AMOUNT EQUAL TO THE HOURLY RATE ORDINARILY AND  CUSTOM-
ARILY CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED TO PAY SUCH COUNSEL
FEES;  PROVIDED,  HOWEVER, IF THE HOURLY RATE ORDINARILY AND CUSTOMARILY
CHARGED BY THE ATTORNEY FOR THE PARTY  PETITIONING  FOR  SUCH  AWARD  IS
LOWER,  SUCH  FEES  SHALL  BE  FIXED  AT  THE HOURLY RATE ORDINARILY AND
CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH LEGAL SERVICES. THE  FORE-
GOING PROVISION SHALL NOT BAR AN AWARD FOR COUNSEL FEES AT A RATE HIGHER
THAN THE FEES CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED TO PAY SUCH
COUNSEL  FEES IN APPROPRIATE CIRCUMSTANCES.  Any applications for [coun-
sel] fees and expenses may be maintained  by  the  attorney  for  either
spouse in counsel's own name in the same proceeding.  [Representation by
an attorney pursuant to paragraph (b) of subdivision nine of section one
hundred  eleven-b of the social services law shall not preclude an award
of counsel fees to an applicant which would otherwise be  allowed  under
this  section.]  PAYMENT  OF  ANY  RETAINER FEES TO THE ATTORNEY FOR THE
PETITIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES  TO
AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S 12. Section 238 of the domestic relations law, as amended by chapter
529 of the laws of 1978, is amended to read as follows:
  S  238.  Expenses  in enforcement AND MODIFICATION proceedings AND FOR
APPEALS.  In any action or proceeding to [compel the payment of any  sum
of  money  required to be paid by] ENFORCE OR MODIFY ANY PROVISION OF OR
TO CARRY ON OR DEFEND ANY APPEAL FROM a judgment or order entered in  an
action  for  divorce, separation, annulment [or], declaration of nullity
of a void marriage, DECLARATION OF VALIDITY OR NULLITY OF A JUDGMENT  OF
DIVORCE  RENDERED  AGAINST  A SPOUSE WHO WAS THE DEFENDANT IN ANY ACTION
OUTSIDE THE STATE OF NEW YORK AND DID  NOT  APPEAR  THEREIN  WHERE  SUCH
SPOUSE  ASSERTS  THE  NULLITY OF SUCH FOREIGN JUDGMENT, OR AN INJUNCTION
RESTRAINING THE PROSECUTION IN ANY OTHER JURISDICTION OF AN ACTION FOR A
DIVORCE, or in any proceeding pursuant to  section  two  hundred  forty-
three,  two  hundred  forty-four, two hundred forty-five, or two hundred

A. 2580                             6

forty-six, the court may in its discretion require either party  to  pay
[the  expenses  of the other in bringing, carrying on, or defending such
action or proceeding] COUNSEL FEES AND  FEES  AND  EXPENSES  OF  EXPERTS
DIRECTLY TO THE ATTORNEY OF THE OTHER PARTY TO ENABLE THE OTHER PARTY TO
CARRY  ON  OR  DEFEND  THE  ACTION  OR  PROCEEDING  AS,  IN  THE COURT'S
DISCRETION, JUSTICE REQUIRES HAVING REGARD TO THE CIRCUMSTANCES  OF  THE
CASE AND OF THE RESPECTIVE PARTIES. THERE SHALL BE A REBUTTABLE PRESUMP-
TION  THAT  COUNSEL  FEES SHALL BE AWARDED TO THE LESS MONIED SPOUSE. In
any such action [or], proceeding OR APPEAL, applications  for  [counsel]
fees  and  expenses may be maintained by the attorney for the respective
parties in counsel's own name and in counsel's own behalf.  IN  EXERCIS-
ING  THE  COURT'S  DISCRETION,  THE COURT SHALL SEEK TO ASSURE THAT EACH
PARTY SHALL BE EQUALLY REPRESENTED AND THAT WHERE FEES AND EXPENSES  ARE
TO  BE  AWARDED, THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE LITE,
SO AS TO ENABLE ADEQUATE REPRESENTATION FROM  THE  COMMENCEMENT  OF  THE
PROCEEDING.  APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES MAY BE MADE
AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES TO THE ACTION
OR PROCEEDING AND THEIR RESPECTIVE ATTORNEYS, SHALL  FILE  AN  AFFIDAVIT
WITH  THE  COURT DETAILING THE FINANCIAL AGREEMENT BETWEEN THE PARTY AND
THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE AMOUNT OF  ANY  RETAINER,
THE  AMOUNTS  PAID AND STILL OWING THEREUNDER, THE HOURLY AMOUNT CHARGED
BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS,  AND  ANY
ADDITIONAL  COSTS,  DISBURSEMENTS  OR  EXPENSES.    IN  FIXING  FEES AND
EXPENSES WHICH THE COURT DETERMINES SHALL BE PAID  BY  EITHER  PARTY  TO
ENABLE  THE  OTHER PARTY TO CARRY ON OR DEFEND THE ACTION OR PROCEEDING,
THE COURT SHALL FIX AN AMOUNT TO BE PAID FOR SUCH PROSECUTION OR DEFENSE
OF THE ACTION OR PROCEEDING AT AN AMOUNT EQUAL TO THE HOURLY RATE  ORDI-
NARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED TO
PAY  SUCH COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE  PARTY  PETITIONING  FOR
SUCH  AWARD  IS LOWER, SUCH FEES SHALL BE FIXED AT THE HOURLY RATE ORDI-
NARILY AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH LEGAL SERVICES.
THE FOREGOING PROVISION SHALL NOT BAR AN AWARD FOR  COUNSEL  FEES  AT  A
RATE HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED
TO  PAY  SUCH  COUNSEL FEES IN APPROPRIATE CIRCUMSTANCES. PAYMENT OF ANY
RETAINER FEES TO THE  ATTORNEY  FOR  THE  PETITIONING  PARTY  SHALL  NOT
PRECLUDE  ANY  AWARDS  OF  FEES AND EXPENSES TO AN APPLICANT WHICH WOULD
OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S 13. Section 438 of the family court act, as amended by  chapter  892
of the laws of 1986, is amended to read as follows:
  S 438. Counsel fees. (a) In any proceeding under this article, includ-
ing proceedings for support of a spouse OR FORMER SPOUSE and children OF
THE  PARTIES,  [or] for support of children only, [or at any hearing] IN
ANY PROCEEDING to modify  or  enforce  an  order  entered  in  [that]  A
proceeding  UNDER  THIS  ARTICLE,  or a proceeding to modify a decree of
divorce, separation, or annulment, including  an  appeal  under  article
eleven,  the  court may allow counsel fees [at any stage of the proceed-
ing], AND FEES AND EXPENSES OF EXPERTS DIRECTLY, to the attorney repres-
enting [the spouse, former spouse or person on behalf of  children]  ANY
PARTY  TO  ENABLE SUCH PARTY TO CARRY ON OR DEFEND THE PROCEEDING AS; IN
THE COURT'S DISCRETION, HAVING REGARD TO THE CIRCUMSTANCES OF  THE  CASE
AND  OF  THE RESPECTIVE PARTIES. THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT COUNSEL FEES SHALL BE AWARDED TO THE LESS MONIED SPOUSE.  IN  EXER-
CISING  THE COURT'S DISCRETION, THE COURT SHALL SEEK TO ASSURE THAT EACH
PARTY SHALL BE EQUALLY REPRESENTED AND THAT WHERE FEES AND EXPENSES  ARE
TO  BE  AWARDED, THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE LITE,

A. 2580                             7

SO AS TO ENABLE ADEQUATE REPRESENTATION FROM  THE  COMMENCEMENT  OF  THE
PROCEEDING.  APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES MAY BE MADE
AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES TO THE ACTION
OR  PROCEEDING  AND  THEIR  RESPECTIVE ATTORNEYS SHALL FILE AN AFFIDAVIT
WITH THE COURT DETAILING THE FINANCIAL AGREEMENT BETWEEN THE  PARTY  AND
THE  ATTORNEY.  SUCH AFFIDAVIT SHALL INCLUDE THE AMOUNT OF ANY RETAINER,
THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE HOURLY  AMOUNT  CHARGED
BY  THE  ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS, AND ANY
ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES. IN FIXING FEES AND EXPENSES
WHICH THE COURT DETERMINES SHALL BE PAID BY EITHER PARTY TO  ENABLE  THE
OTHER  PARTY  TO  CARRY ON OR DEFEND THE ACTION OR PROCEEDING, THE COURT
SHALL FIX THE AMOUNT TO BE PAID FOR SUCH PROSECUTION OR DEFENSE  OF  THE
ACTION  OR  PROCEEDING  AT AN AMOUNT EQUAL TO THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY  REQUIRED  TO  PAY
SUCH  COUNSEL  FEE.  THE  FOREGOING PROVISION SHALL NOT BAR AN AWARD FOR
COUNSEL FEES AT A RATE HIGHER THAN THE FEES CHARGED BY THE ATTORNEY  FOR
THE  PARTY  REQUIRED  TO  PAY  SUCH  COUNSEL FEES IN APPROPRIATE CIRCUM-
STANCES. ANY APPLICATIONS FOR FEES AND EXPENSES MAY BE MAINTAINED BY THE
ATTORNEY FOR EITHER SPOUSE IN COUNSEL'S OWN NAME IN THE SAME PROCEEDING.
PAYMENT OF ANY RETAINER FEES TO THE ATTORNEY FOR THE  PETITIONING  PARTY
SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO AN APPLICANT WHICH
WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  (b)  In any proceeding for failure to obey any lawful order compelling
payment of support of a spouse or former  spouse  and  children,  or  of
children  only,  the  court  shall, upon a finding that such failure was
willful, order respondent to pay counsel fees AND FEES AND  EXPENSES  OF
EXPERTS  DIRECTLY  to the attorney representing the petitioner or person
on behalf of the children.  [Representation by an attorney  pursuant  to
paragraph (b) of subdivision nine of section one hundred eleven-b of the
social  services  law  shall not preclude an award of counsel fees to an
applicant which would otherwise be allowed  under  this  section.]  BOTH
PARTIES TO THE ACTION OR PROCEEDING AND THEIR RESPECTIVE ATTORNEYS SHALL
FILE  AN  AFFIDAVIT  WITH  THE  COURT  DETAILING THE FINANCIAL AGREEMENT
BETWEEN THE PARTY AND THE ATTORNEY. SUCH  AFFIDAVIT  SHALL  INCLUDE  THE
AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
HOURLY  AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID,
ANY EXPERTS AND ANY ADDITIONAL  COSTS,  DISBURSEMENTS  OR  EXPENSES.  IN
FIXING  FEES  AND  EXPENSES WHICH THE COURT DETERMINES SHALL BE PAID THE
COURT SHALL FIX THE AMOUNT AT AN AMOUNT EQUAL TO THE HOURLY  RATE  ORDI-
NARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED TO
PAY  SUCH COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE  PARTY  PETITIONING  FOR
SUCH  AWARD  IS LOWER, SUCH FEES SHALL BE FIXED AT THE HOURLY RATE ORDI-
NARILY AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH LEGAL SERVICES.
THE FOREGOING PROVISION SHALL NOT BAR AN AWARD FOR  COUNSEL  FEES  AT  A
RATE HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED
TO  PAY SUCH COUNSEL FEES IN APPROPRIATE CIRCUMSTANCES.  ANY APPLICATION
FOR FEES AND EXPENSES MAY BE  MAINTAINED  BY  THE  ATTORNEY  FOR  EITHER
SPOUSE  IN HIS OWN NAME IN THE SAME PROCEEDING.  PAYMENT OF ANY RETAINER
FEES TO THE ATTORNEY FOR THE PETITIONING PARTY SHALL  NOT  PRECLUDE  ANY
AWARDS  OF  FEES  AND  EXPENSES TO AN APPLICANT WHICH WOULD OTHERWISE BE
ALLOWED UNDER THIS SECTION.
  S 14. This act shall take effect on the sixtieth day  after  it  shall
have  become a law and shall apply to any action or proceeding commenced
on or after such effective date.

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

                                 2580--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 20, 2009
                               ___________

Introduced  by M. of A. WEINSTEIN, PAULIN, CYMBROWITZ, EDDINGTON, JAFFEE
  -- Multi-Sponsored by -- M. of  A.  COOK,  DESTITO,  FIELDS,  MILLMAN,
  PEOPLES,  WEISENBERG  --  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 and the family court act, in
  relation to enacting the "Divorce Reform Act of 2009"

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

  Section  1.  Short  title. This act shall be known and may be cited as
the "Divorce Reform Act of 2009".
  S 2. 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  six  of this part, to be paid at fixed
intervals [for a definite or indefinite] EITHER  PERMANENTLY  OR  FOR  A
FIXED  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)] B of subdivi-
sion  nine  of  [section two hundred thirty-six of] this part or section
two hundred forty-eight of this chapter. FAILURE TO STATE IN  AN  AGREE-
MENT  BETWEEN  THE  PARTIES,  OR  IN A COURT ORDER, THAT THE RECIPIENT'S
RE-MARRIAGE SHALL TERMINATE AN AWARD OF MAINTENANCE, SHALL  NOT  PREVENT
THE TERMINATION OF SUCH MAINTENANCE.
  S  3.  Subparagraph  2  of  paragraph  d of subdivision 5 of part B of
section 236 of the domestic relations law, as added by  chapter  281  of
the laws of 1980, is amended to read as follows:
  (2)  the  duration  of  the  marriage  and  the age and health of both
parties AND THE POST-DIVORCE STANDARDS OF LIVING OF THE PARTIES;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01545-04-9
              

A. 2580--A                          2

  S 4. Subparagraphs 5, 6, 7, 8, 9, 10, 11, 12 and 13 of paragraph d  of
subdivision  5  of  part B of section 236 of the domestic relations law,
subparagraph 13 as renumbered by chapter 884 of the laws  of  1986,  are
renumbered  subparagraphs  6,  7, 8, 9, 10, 11, 12, 13 and 14, and a new
subparagraph 5 is added to read as follows:
  (5)  THE  LOSS  OF  HEALTH  INSURANCE BENEFITS UPON DISSOLUTION OF THE
MARRIAGE;
  S 5. The opening paragraph of paragraph a and paragraph c of  subdivi-
sion  6  of  part  B  of  section  236 of the domestic relations law, as
amended by chapter 884 of the laws of  1986,  are  amended  to  read  as
follows:
  Except  where  the  parties have entered into an agreement pursuant to
subdivision three of this part providing for maintenance, in any  matri-
monial  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 respec-
tive parties. Such order]. IN THOSE SITUATIONS WHERE THE  PARTY  SEEKING
MAINTENANCE  IS UNABLE TO MAINTAIN THE STANDARD OF LIVING OF THE PARTIES
ESTABLISHED DURING THE MARRIAGE DUE TO THE  DURATION  OF  THE  MARRIAGE,
AGE,  HEALTH,  OR  REDUCED OR LOST LIFETIME EARNING CAPACITY, OR LOSS OF
HEALTH INSURANCE BENEFITS, OR THE NEEDS OF MINOR OR DEPENDENT  CHILDREN,
THE  COURT  SHALL  ORDER PERMANENT MAINTENANCE, SUBJECT TO MODIFICATION,
PURSUANT TO PARAGRAPH B OF SUBDIVISION NINE OF THIS PART, IN  AN  AMOUNT
SUFFICIENT  TO  ELIMINATE  THE DISPARITY IN THE POST-DIVORCE STANDARD OF
LIVING OF THE PARTIES.  ORDERS OF MAINTENANCE 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  mainte-
nance the court shall consider:
  c.  [The court may award permanent maintenance, but an award of] WHERE
THE COURT ORDERS PERMANENT MAINTENANCE OR MAINTENANCE FOR A FIXED  PERI-
OD,  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)] B of subdivision nine of [section two  hundred  thir-
ty-six of] this part or section two hundred forty-eight of this chapter.
FAILURE  TO  STATE  IN  AN  AGREEMENT BETWEEN THE PARTIES, OR IN A COURT
ORDER, THAT THE RECIPIENT'S RE-MARRIAGE  SHALL  TERMINATE  AN  AWARD  OF
MAINTENANCE, SHALL NOT PREVENT THE TERMINATION OF SUCH MAINTENANCE.
  S  6.  Subparagraph  10  of  paragraph a of subdivision 6 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:
  (10) any transfer or encumbrance made in contemplation of a matrimoni-
al action without fair consideration; [and]
  S  7.  Subparagraph  11  of  paragraph a of subdivision 6 of part B of
section 236 of the domestic relations law is renumbered subparagraph 12,
and a new subparagraph 11 is added to read as follows:
  (11) THE LOSS OF HEALTH INSURANCE BENEFITS  UPON  DISSOLUTION  OF  THE
MARRIAGE; AND
  S  8. Section 170 of the domestic relations law is amended by adding a
new subdivision 7 to read as follows:

A. 2580--A                          3

   (7) IRRECONCILABLE DIFFERENCES HAVE ARISEN BETWEEN THE  PARTIES  SUCH
THAT THERE IS NO REASONABLE PROSPECT OF RECONCILIATION. THERE SHALL BE A
PRESUMPTION  THAT,  AFTER  TWELVE CONSECUTIVE MONTHS OF SEPARATE HABITA-
TION, NO REASONABLE PROSPECT OF RECONCILIATION EXISTS. NOTHING  IN  THIS
SUBDIVISION  SHALL  RELIEVE A PARTY FROM HIS OR HER OBLIGATION TO COMPLY
SUBSTANTIALLY WITH ALL THE TERMS AND CONDITIONS OF ANY DECREE  OR  JUDG-
MENT  OF  SEPARATION  PURSUANT TO SUBDIVISION FIVE OF THIS SECTION OR OF
ANY WRITTEN AGREEMENT OF SEPARATION PURSUANT TO SUBDIVISION SIX OF  THIS
SECTION.  THE  COURT  SHALL  NOT  AWARD SUMMARY JUDGMENT ON ANY CAUSE OF
ACTION BROUGHT PURSUANT TO THIS SUBDIVISION. IN THE ABSENCE OF  A  VALID
WRITTEN  AND  FULLY  EXECUTED  AGREEMENT  OF  SEPARATION, JUDGMENT IN AN
ACTION BROUGHT PURSUANT TO THIS SUBDIVISION SHALL NOT BE  GRANTED  UNTIL
THE  ECONOMIC  ISSUES BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO,
THE DISTRIBUTION OF MARITAL PROPERTY, SPOUSAL SUPPORT AND CHILD SUPPORT,
AND CUSTODY AND VISITATION HAVE BEEN DECIDED BY THE COURT  AND  INCORPO-
RATED IN THE FINAL JUDGMENT OF DIVORCE.
  S 9. Subdivisions (a) and (b) of section 237 of the domestic relations
law,  subdivision  (a) as amended by chapter 482 of the laws of 1987 and
subdivision (b) as amended by chapter 892  of  the  laws  of  1986,  are
amended to read as follows:
  (a)  In any action or proceeding brought (1) to annul a marriage or to
declare the nullity of a void marriage, or (2) for a separation, or  (3)
for  a  divorce, or (4) to declare the validity or nullity of a judgment
of divorce rendered against a spouse who was the defendant in any action
outside the State of New York and did not appear  therein  where    such
spouse  asserts the nullity of such foreign judgment, [or] (5) TO OBTAIN
MAINTENANCE OR DISTRIBUTION OF PROPERTY FOLLOWING A FOREIGN JUDGMENT  OF
DIVORCE,  OR  (6) to enjoin the prosecution in any other jurisdiction of
an action for a divorce, the court may direct either spouse   or,  where
an  action  for annulment is maintained after the death of a spouse, may
direct the person or persons maintaining the action, to pay [such sum or
sums of money] COUNSEL FEES AND FEES AND EXPENSES OF EXPERTS directly to
the  attorney of the other spouse to  enable  [that  spouse]  THE  OTHER
PARTY  to carry on or defend the action or proceeding as, in the court's
discretion, justice requires, having regard to the circumstances of  the
case  and of the respective parties. [Such direction must be made in the
final judgment in such action or proceeding, or by one  or  more  orders
from time to time before final judgment, or by both such order or orders
and  the final judgment; provided, however, such direction shall be made
prior to final judgment where it is shown that such order is required to
enable the petitioning party to  properly  proceed]  THERE  SHALL  BE  A
REBUTTABLE  PRESUMPTION  THAT  COUNSEL FEES SHALL BE AWARDED TO THE LESS
MONIED SPOUSE. IN EXERCISING THE COURT'S  DISCRETION,  THE  COURT  SHALL
SEEK  TO ASSURE THAT EACH PARTY SHALL BE ADEQUATELY REPRESENTED AND THAT
WHERE FEES AND EXPENSES ARE TO BE AWARDED, THEY SHALL BE  AWARDED  ON  A
TIMELY  BASIS,  PENDENTE  LITE,  SO AS TO ENABLE ADEQUATE REPRESENTATION
FROM THE COMMENCEMENT OF THE PROCEEDING.  APPLICATIONS FOR THE AWARD  OF
FEES  AND EXPENSES MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDG-
MENT. BOTH PARTIES TO THE ACTION  OR  PROCEEDING  AND  THEIR  RESPECTIVE
ATTORNEYS,  SHALL  FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINAN-
CIAL AGREEMENT BETWEEN THE PARTY AND THE ATTORNEY. SUCH AFFIDAVIT  SHALL
INCLUDE  THE  AMOUNT  OF  ANY RETAINER, THE AMOUNTS PAID AND STILL OWING
THEREUNDER, THE HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID,
OR TO BE PAID, ANY EXPERTS, AND ANY ADDITIONAL COSTS,  DISBURSEMENTS  OR
EXPENSES.  IN  FIXING FEES AND EXPENSES WHICH THE COURT DETERMINES SHALL
BE PAID BY EITHER PARTY TO ENABLE THE OTHER PARTY TO CARRY ON OR  DEFEND

A. 2580--A                          4

THE  ACTION OR PROCEEDING, THE COURT SHALL FIX THE AMOUNT TO BE PAID FOR
SUCH PROSECUTION OR DEFENSE OF THE ACTION OR  PROCEEDING  AT  AN  AMOUNT
EQUAL  TO  THE  HOURLY  RATE  ORDINARILY  AND CUSTOMARILY CHARGED BY THE
ATTORNEY  FOR  THE  PARTY  REQUIRED  TO PAY SUCH COUNSEL FEES; PROVIDED,
HOWEVER, IF THE HOURLY RATE ORDINARILY AND CUSTOMARILY  CHARGED  BY  THE
ATTORNEY  FOR  THE  PARTY PETITIONING FOR SUCH AWARD IS LOWER, SUCH FEES
SHALL BE FIXED AT THE HOURLY RATE ORDINARILY AND CUSTOMARILY CHARGED  BY
SUCH ATTORNEY FOR SUCH LEGAL SERVICES. THE FOREGOING PROVISION SHALL NOT
BAR  AN AWARD FOR COUNSEL FEES AT A RATE HIGHER THAN THE FEES CHARGED BY
THE ATTORNEY FOR THE PARTY REQUIRED TO PAY SUCH COUNSEL FEES  IN  APPRO-
PRIATE  CIRCUMSTANCES.  Any applications for [counsel] fees and expenses
may be maintained by the attorney for either spouse in his own  name  in
the  same proceeding.   PAYMENT OF ANY RETAINER FEES TO THE ATTORNEY FOR
THE PETITIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES
TO AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  (b) Upon any application to ENFORCE, annul or modify an order or judg-
ment for alimony, MAINTENANCE, DISTRIBUTIVE AWARD, DISTRIBUTION OF MARI-
TAL PROPERTY or for custody, visitation, or maintenance of a child, made
as in section two  hundred  thirty-six  or  section  two  hundred  forty
provided,  or  upon any application by writ of habeas corpus or by peti-
tion and order to show cause concerning custody, visitation  or  mainte-
nance  of  a child, the court may direct a spouse or parent to pay [such
sum or sums of money for the prosecution or the defense of] COUNSEL FEES
AND FEES AND EXPENSES OF EXPERTS DIRECTLY TO THE ATTORNEY OF  THE  OTHER
SPOUSE  OR  PARENT  TO  ENABLE THE OTHER PARTY TO CARRY ON OR DEFEND the
application or proceeding by the other  spouse  or  parent  as,  in  the
court's discretion, justice requires, having regard to the circumstances
of  the  case  and  of the respective parties. [With respect to any such
application or proceeding, such direction may be made in  the  order  or
judgment  by  which  the particular application or proceeding is finally
determined, or by one or more orders from time to time before the  final
order  or  judgment, or by both such order or orders and the final order
or judgment] THERE SHALL BE A REBUTTABLE PRESUMPTION THAT  COUNSEL  FEES
SHALL  BE  AWARDED  TO THE LESS MONIED SPOUSE. IN EXERCISING THE COURT'S
DISCRETION; THE COURT SHALL SEEK TO ASSURE  THAT  EACH  PARTY  SHALL  BE
ADEQUATELY  REPRESENTED  AND  THAT  WHERE  FEES  AND  EXPENSES ARE TO BE
AWARDED, THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE LITE,  SO  AS
TO  ENABLE ADEQUATE REPRESENTATION FROM THE COMMENCEMENT OF THE PROCEED-
ING.  APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES MAY BE MADE AT ANY
TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES  TO  THE  ACTION  OR
PROCEEDING  AND THEIR RESPECTIVE ATTORNEYS, SHALL FILE AN AFFIDAVIT WITH
THE COURT DETAILING THE FINANCIAL AGREEMENT, BETWEEN THE PARTY  AND  THE
ATTORNEY.  SUCH  AFFIDAVIT SHALL INCLUDE THE AMOUNT OF ANY RETAINER, THE
AMOUNTS PAID AND STILL OWING THEREUNDER, THE HOURLY  AMOUNT  CHARGED  BY
THE  ATTORNEY,  THE  AMOUNTS  PAID,  OR TO BE PAID, ANY EXPERTS, AND ANY
ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES. IN FIXING FEES AND EXPENSES
WHICH THE COURT DETERMINES SHALL BE PAID BY EITHER PARTY TO  ENABLE  THE
OTHER  PARTY  TO  CARRY ON OR DEFEND THE ACTION OR PROCEEDING, THE COURT
SHALL FIX THE AMOUNT TO BE PAID FOR SUCH PROSECUTION OR DEFENSE  OF  THE
ACTION  OR  PROCEEDING  AT AN AMOUNT EQUAL TO THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY  REQUIRED  TO  PAY
SUCH  COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOURLY RATE ORDINARILY AND
CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY PETITIONING  FOR  SUCH
AWARD  IS  LOWER, SUCH FEES SHALL BE FIXED AT THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH  LEGAL  SERVICES.  THE
FOREGOING  PROVISION  SHALL  NOT BAR AN AWARD FOR COUNSEL FEES AT A RATE

A. 2580--A                          5

HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR THE PARTY  REQUIRED  TO
PAY  SUCH  COUNSEL  FEES IN APPROPRIATE CIRCUMSTANCES.  Any applications
for [counsel] fees and expenses may be maintained by  the  attorney  for
either  spouse in counsel's own name in the same proceeding.  [Represen-
tation by an attorney pursuant to paragraph (b) of subdivision  nine  of
section  one  hundred  eleven-b  of  the  social  services law shall not
preclude an award of counsel fees to an applicant which would  otherwise
be  allowed  under  this  section.]  PAYMENT OF ANY RETAINER FEES TO THE
ATTORNEY FOR THE PETITIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES
AND EXPENSES TO AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS
SECTION.
  S 10. Section 238 of the domestic relations law, as amended by chapter
529 of the laws of 1978, is amended to read as follows:
  S 238. Expenses in enforcement AND MODIFICATION  proceedings  AND  FOR
APPEALS.   In any action or proceeding to [compel the payment of any sum
of money required to be paid by] ENFORCE OR MODIFY ANY PROVISION  OF  OR
TO  CARRY ON OR DEFEND ANY APPEAL FROM a judgment or order entered in an
action for divorce, separation, annulment [or], declaration  of  nullity
of  a void marriage, DECLARATION OF VALIDITY OR NULLITY OF A JUDGMENT OF
DIVORCE RENDERED AGAINST A SPOUSE WHO WAS THE DEFENDANT  IN  ANY  ACTION
OUTSIDE  THE  STATE  OF  NEW  YORK AND DID NOT APPEAR THEREIN WHERE SUCH
SPOUSE ASSERTS THE NULLITY OF SUCH FOREIGN JUDGMENT,  OR  AN  INJUNCTION
RESTRAINING THE PROSECUTION IN ANY OTHER JURISDICTION OF AN ACTION FOR A
DIVORCE,  or  in  any  proceeding pursuant to section two hundred forty-
three, two hundred forty-four, two hundred forty-five,  or  two  hundred
forty-six,  the  court may in its discretion require either party to pay
[the expenses of the other in bringing, carrying on, or  defending  such
action  or  proceeding]  COUNSEL  FEES  AND FEES AND EXPENSES OF EXPERTS
DIRECTLY TO THE ATTORNEY OF THE OTHER PARTY TO ENABLE THE OTHER PARTY TO
CARRY ON  OR  DEFEND  THE  ACTION  OR  PROCEEDING  AS,  IN  THE  COURT'S
DISCRETION,  JUSTICE  REQUIRES HAVING REGARD TO THE CIRCUMSTANCES OF THE
CASE AND OF THE RESPECTIVE PARTIES. THERE SHALL BE A REBUTTABLE PRESUMP-
TION THAT COUNSEL FEES SHALL BE AWARDED TO THE LESS  MONIED  SPOUSE.  In
any  such  action [or], proceeding OR APPEAL, applications for [counsel]
fees and expenses may be maintained by the attorney for  the  respective
parties  in counsel's own name and in counsel's own behalf.  IN EXERCIS-
ING THE COURT'S DISCRETION, THE COURT SHALL SEEK  TO  ASSURE  THAT  EACH
PARTY  SHALL  BE ADEQUATELY REPRESENTED AND THAT WHERE FEES AND EXPENSES
ARE TO BE AWARDED, THEY SHALL BE AWARDED ON  A  TIMELY  BASIS,  PENDENTE
LITE,  SO  AS TO ENABLE ADEQUATE REPRESENTATION FROM THE COMMENCEMENT OF
THE PROCEEDING. APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES  MAY  BE
MADE  AT  ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES TO THE
ACTION OR PROCEEDING AND THEIR RESPECTIVE ATTORNEYS, SHALL FILE AN AFFI-
DAVIT WITH THE COURT DETAILING THE FINANCIAL AGREEMENT BETWEEN THE PARTY
AND THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE AMOUNT OF ANY RETAIN-
ER, THE AMOUNTS PAID AND  STILL  OWING  THEREUNDER,  THE  HOURLY  AMOUNT
CHARGED  BY  THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS,
AND ANY ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES.  IN FIXING FEES AND
EXPENSES WHICH THE COURT DETERMINES SHALL BE PAID  BY  EITHER  PARTY  TO
ENABLE  THE  OTHER PARTY TO CARRY ON OR DEFEND THE ACTION OR PROCEEDING,
THE COURT SHALL FIX AN AMOUNT TO BE PAID FOR SUCH PROSECUTION OR DEFENSE
OF THE ACTION OR PROCEEDING AT AN AMOUNT EQUAL TO THE HOURLY RATE  ORDI-
NARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED TO
PAY  SUCH COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE  PARTY  PETITIONING  FOR
SUCH  AWARD  IS LOWER, SUCH FEES SHALL BE FIXED AT THE HOURLY RATE ORDI-

A. 2580--A                          6

NARILY AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH LEGAL SERVICES.
THE FOREGOING PROVISION SHALL NOT BAR AN AWARD FOR  COUNSEL  FEES  AT  A
RATE HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED
TO  PAY  SUCH  COUNSEL FEES IN APPROPRIATE CIRCUMSTANCES. PAYMENT OF ANY
RETAINER FEES TO THE  ATTORNEY  FOR  THE  PETITIONING  PARTY  SHALL  NOT
PRECLUDE  ANY  AWARDS  OF  FEES AND EXPENSES TO AN APPLICANT WHICH WOULD
OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S 11. Section 438 of the family court act, as amended by  chapter  892
of the laws of 1986, is amended to read as follows:
  S 438. Counsel fees. (a) In any proceeding under this article, includ-
ing proceedings for support of a spouse OR FORMER SPOUSE and children OF
THE  PARTIES,  [or] for support of children only, [or at any hearing] IN
ANY PROCEEDING to modify  or  enforce  an  order  entered  in  [that]  A
proceeding  UNDER  THIS  ARTICLE,  or a proceeding to modify a decree of
divorce, separation, or annulment, including  an  appeal  under  article
eleven,  the  court may allow counsel fees [at any stage of the proceed-
ing], AND FEES AND EXPENSES OF EXPERTS DIRECTLY, to the attorney repres-
enting [the spouse, former spouse or person on behalf of  children]  ANY
PARTY  TO  ENABLE SUCH PARTY TO CARRY ON OR DEFEND THE PROCEEDING AS; IN
THE COURT'S DISCRETION, HAVING REGARD TO THE CIRCUMSTANCES OF  THE  CASE
AND  OF  THE RESPECTIVE PARTIES. THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT COUNSEL FEES SHALL BE AWARDED TO THE LESS MONIED SPOUSE.  IN  EXER-
CISING  THE COURT'S DISCRETION, THE COURT SHALL SEEK TO ASSURE THAT EACH
PARTY SHALL BE ADEQUATELY REPRESENTED AND THAT WHERE FEES  AND  EXPENSES
ARE  TO  BE  AWARDED,  THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE
LITE, SO AS TO ENABLE ADEQUATE REPRESENTATION FROM THE  COMMENCEMENT  OF
THE  PROCEEDING.  APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES MAY BE
MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES  TO  THE
ACTION  OR PROCEEDING AND THEIR RESPECTIVE ATTORNEYS SHALL FILE AN AFFI-
DAVIT WITH THE COURT DETAILING THE FINANCIAL AGREEMENT BETWEEN THE PARTY
AND THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE AMOUNT OF ANY RETAIN-
ER, THE AMOUNTS PAID AND  STILL  OWING  THEREUNDER,  THE  HOURLY  AMOUNT
CHARGED  BY  THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS,
AND ANY ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES. IN FIXING FEES  AND
EXPENSES  WHICH  THE  COURT  DETERMINES SHALL BE PAID BY EITHER PARTY TO
ENABLE THE OTHER PARTY TO CARRY ON OR DEFEND THE ACTION  OR  PROCEEDING,
THE  COURT  SHALL  FIX  THE  AMOUNT  TO  BE PAID FOR SUCH PROSECUTION OR
DEFENSE OF THE ACTION OR PROCEEDING AT AN AMOUNT  EQUAL  TO  THE  HOURLY
RATE  ORDINARILY  AND  CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY
REQUIRED TO PAY SUCH COUNSEL FEE. THE FOREGOING PROVISION SHALL NOT  BAR
AN  AWARD FOR COUNSEL FEES AT A RATE HIGHER THAN THE FEES CHARGED BY THE
ATTORNEY FOR THE PARTY REQUIRED TO PAY SUCH COUNSEL FEES IN  APPROPRIATE
CIRCUMSTANCES.  ANY APPLICATIONS FOR FEES AND EXPENSES MAY BE MAINTAINED
BY THE ATTORNEY FOR EITHER SPOUSE IN COUNSEL'S  OWN  NAME  IN  THE  SAME
PROCEEDING.  PAYMENT  OF ANY RETAINER FEES TO THE ATTORNEY FOR THE PETI-
TIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES  TO  AN
APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  (b)  In any proceeding for failure to obey any lawful order compelling
payment of support of a spouse or former  spouse  and  children,  or  of
children  only,  the  court  shall, upon a finding that such failure was
willful, order respondent to pay counsel fees AND FEES AND  EXPENSES  OF
EXPERTS  DIRECTLY  to the attorney representing the petitioner or person
on behalf of the children.  [Representation by an attorney  pursuant  to
paragraph (b) of subdivision nine of section one hundred eleven-b of the
social  services  law  shall not preclude an award of counsel fees to an
applicant which would otherwise be allowed  under  this  section.]  BOTH

A. 2580--A                          7

PARTIES TO THE ACTION OR PROCEEDING AND THEIR RESPECTIVE ATTORNEYS SHALL
FILE  AN  AFFIDAVIT  WITH  THE  COURT  DETAILING THE FINANCIAL AGREEMENT
BETWEEN THE PARTY AND THE ATTORNEY. SUCH  AFFIDAVIT  SHALL  INCLUDE  THE
AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
HOURLY  AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID,
ANY EXPERTS AND ANY ADDITIONAL  COSTS,  DISBURSEMENTS  OR  EXPENSES.  IN
FIXING  FEES  AND  EXPENSES WHICH THE COURT DETERMINES SHALL BE PAID THE
COURT SHALL FIX THE AMOUNT AT AN AMOUNT EQUAL TO THE HOURLY  RATE  ORDI-
NARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED TO
PAY  SUCH COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE  PARTY  PETITIONING  FOR
SUCH  AWARD  IS LOWER, SUCH FEES SHALL BE FIXED AT THE HOURLY RATE ORDI-
NARILY AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH LEGAL SERVICES.
THE FOREGOING PROVISION SHALL NOT BAR AN AWARD FOR  COUNSEL  FEES  AT  A
RATE HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED
TO  PAY SUCH COUNSEL FEES IN APPROPRIATE CIRCUMSTANCES.  ANY APPLICATION
FOR FEES AND EXPENSES MAY BE  MAINTAINED  BY  THE  ATTORNEY  FOR  EITHER
SPOUSE  IN HIS OWN NAME IN THE SAME PROCEEDING.  PAYMENT OF ANY RETAINER
FEES TO THE ATTORNEY FOR THE PETITIONING PARTY SHALL  NOT  PRECLUDE  ANY
AWARDS  OF  FEES  AND  EXPENSES TO AN APPLICANT WHICH WOULD OTHERWISE BE
ALLOWED UNDER THIS SECTION.
  S 12. This act shall take effect on the sixtieth day  after  it  shall
have  become a law and shall apply to any action or proceeding commenced
on or after such effective date.

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

                                 2580--B

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 20, 2009
                               ___________

Introduced  by  M. of A. WEINSTEIN, PAULIN, CYMBROWITZ, JAFFEE, GUNTHER,
  PERRY, LANCMAN, TITUS, COOK -- Multi-Sponsored by -- M. of A. DESTITO,
  FIELDS,  GABRYSZAK,  HOOPER,  JOHN,  KOON,  MARKEY,  MILLMAN,   NOLAN,
  PEOPLES-STOKES, REILLY, TOWNS, WEISENBERG -- read once and referred to
  the  Committee  on  Judiciary  --  committee discharged, bill amended,
  ordered reprinted as amended and  recommitted  to  said  committee  --
  recommitted  to the Committee on Judiciary in accordance with Assembly
  Rule  3,  sec.  2  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT to amend the domestic relations law and the family court act, in
  relation to enacting the "Divorce Reform Act of 2010"

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

  Section  1.  Short  title. This act shall be known and may be cited as
the "Divorce Reform Act of 2010".
  S 2. 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  six  of this part, to be paid at fixed
intervals [for a definite or indefinite] EITHER  PERMANENTLY  OR  FOR  A
FIXED  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)] B of subdivi-
sion  nine  of  [section two hundred thirty-six of] this part or section
two hundred forty-eight of this [chapter] ARTICLE. FAILURE TO  STATE  IN
AN  AGREEMENT BETWEEN THE PARTIES, OR IN A COURT ORDER, THAT THE RECIPI-
ENT'S RE-MARRIAGE SHALL TERMINATE AN AWARD  OF  MAINTENANCE,  SHALL  NOT
PREVENT THE TERMINATION OF SUCH MAINTENANCE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01545-08-0

              

A. 2580--B                          2

  S  3.  Subparagraph  2  of  paragraph  d of subdivision 5 of part B of
section 236 of the domestic relations law, as added by  chapter  281  of
the laws of 1980, is amended to read as follows:
  (2)  the  duration  of  the  marriage  and  the age and health of both
parties AND THE POST-DIVORCE STANDARDS OF LIVING OF THE PARTIES;
  S 4. The opening paragraph of paragraph a and paragraph c of  subdivi-
sion  6  of  part  B  of  section  236 of the domestic relations law, as
amended by chapter 884 of the laws of  1986,  are  amended  to  read  as
follows:
  Except  where  the  parties have entered into an agreement pursuant to
subdivision three of this part providing for maintenance, in any  matri-
monial  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 respec-
tive parties. Such order]. IN THOSE SITUATIONS WHERE THE  PARTY  SEEKING
MAINTENANCE  IS UNABLE TO MAINTAIN THE STANDARD OF LIVING OF THE PARTIES
ESTABLISHED DURING THE MARRIAGE DUE TO THE  DURATION  OF  THE  MARRIAGE,
AGE,  HEALTH,  OR  REDUCED OR LOST LIFETIME EARNING CAPACITY, OR LOSS OF
HEALTH INSURANCE BENEFITS, OR THE NEEDS OF MINOR OR DEPENDENT  CHILDREN,
THE  COURT  SHALL  ORDER PERMANENT MAINTENANCE, SUBJECT TO MODIFICATION,
PURSUANT TO PARAGRAPH B OF SUBDIVISION NINE OF THIS PART, IN  AN  AMOUNT
SUFFICIENT  TO  ELIMINATE  THE DISPARITY IN THE POST-DIVORCE STANDARD OF
LIVING OF THE PARTIES.  ORDERS OF MAINTENANCE 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  mainte-
nance the court shall consider:
  c.  [The court may award permanent maintenance, but an award of] WHERE
THE COURT ORDERS PERMANENT MAINTENANCE OR MAINTENANCE FOR A FIXED  PERI-
OD,  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)] B of subdivision nine of [section two  hundred  thir-
ty-six  of]  this part or section two hundred forty-eight of this [chap-
ter] ARTICLE. FAILURE TO STATE IN AN AGREEMENT BETWEEN THE  PARTIES,  OR
IN  A  COURT  ORDER, THAT THE RECIPIENT'S RE-MARRIAGE SHALL TERMINATE AN
AWARD OF MAINTENANCE, SHALL NOT PREVENT THE TERMINATION OF SUCH  MAINTE-
NANCE.
  S  5. Section 170 of the domestic relations law is amended by adding a
new subdivision 7 to read as follows:
  (7) IRRECONCILABLE DIFFERENCES HAVE ARISEN BETWEEN  THE  PARTIES  SUCH
THAT THERE IS NO REASONABLE PROSPECT OF RECONCILIATION. THERE SHALL BE A
PRESUMPTION  THAT,  AFTER  TWELVE CONSECUTIVE MONTHS OF SEPARATE HABITA-
TION, NO REASONABLE PROSPECT OF RECONCILIATION EXISTS. NOTHING  IN  THIS
SUBDIVISION  SHALL  RELIEVE A PARTY FROM HIS OR HER OBLIGATION TO COMPLY
SUBSTANTIALLY WITH ALL THE TERMS AND CONDITIONS OF ANY DECREE  OR  JUDG-
MENT  OF  SEPARATION  PURSUANT TO SUBDIVISION FIVE OF THIS SECTION OR OF
ANY WRITTEN AGREEMENT OF SEPARATION PURSUANT TO SUBDIVISION SIX OF  THIS
SECTION.  THE  COURT  SHALL  NOT  AWARD SUMMARY JUDGMENT ON ANY CAUSE OF
ACTION BROUGHT PURSUANT TO THIS SUBDIVISION. IN THE ABSENCE OF  A  VALID
WRITTEN  AND  FULLY  EXECUTED  AGREEMENT  OF  SEPARATION, JUDGMENT IN AN
ACTION BROUGHT PURSUANT TO THIS SUBDIVISION SHALL NOT BE  GRANTED  UNTIL

A. 2580--B                          3

THE  ECONOMIC  ISSUES BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO,
THE DISTRIBUTION OF MARITAL PROPERTY, SPOUSAL SUPPORT AND CHILD SUPPORT,
AND CUSTODY AND VISITATION HAVE BEEN DECIDED BY THE COURT  AND  INCORPO-
RATED IN THE FINAL JUDGMENT OF DIVORCE.
  S 6. Subdivisions (a) and (b) of section 237 of the domestic relations
law,  subdivision  (a) as amended by chapter 482 of the laws of 1987 and
subdivision (b) as amended by chapter 892  of  the  laws  of  1986,  are
amended to read as follows:
  (a)  In any action or proceeding brought (1) to annul a marriage or to
declare the nullity of a void marriage, or (2) for a separation, or  (3)
for  a  divorce, or (4) to declare the validity or nullity of a judgment
of divorce rendered against a spouse who was the defendant in any action
outside the State of New York and did not appear  therein  where    such
spouse  asserts the nullity of such foreign judgment, [or] (5) TO OBTAIN
MAINTENANCE OR DISTRIBUTION OF PROPERTY FOLLOWING A FOREIGN JUDGMENT  OF
DIVORCE,  OR  (6) to enjoin the prosecution in any other jurisdiction of
an action for a divorce, the court may direct either spouse   or,  where
an  action  for annulment is maintained after the death of a spouse, may
direct the person or persons maintaining the action, to pay [such sum or
sums of money] COUNSEL FEES AND FEES AND EXPENSES OF EXPERTS directly to
the  attorney of the other spouse to  enable  [that  spouse]  THE  OTHER
PARTY  to carry on or defend the action or proceeding as, in the court's
discretion, justice requires, having regard to the circumstances of  the
case  and of the respective parties. [Such direction must be made in the
final judgment in such action or proceeding, or by one  or  more  orders
from time to time before final judgment, or by both such order or orders
and  the final judgment; provided, however, such direction shall be made
prior to final judgment where it is shown that such order is required to
enable the petitioning party to  properly  proceed]  THERE  SHALL  BE  A
REBUTTABLE  PRESUMPTION  THAT  COUNSEL FEES SHALL BE AWARDED TO THE LESS
MONIED SPOUSE. IN EXERCISING THE COURT'S  DISCRETION,  THE  COURT  SHALL
SEEK  TO ASSURE THAT EACH PARTY SHALL BE ADEQUATELY REPRESENTED AND THAT
WHERE FEES AND EXPENSES ARE TO BE AWARDED, THEY SHALL BE  AWARDED  ON  A
TIMELY  BASIS,  PENDENTE  LITE,  SO AS TO ENABLE ADEQUATE REPRESENTATION
FROM THE COMMENCEMENT OF THE PROCEEDING.  APPLICATIONS FOR THE AWARD  OF
FEES  AND EXPENSES MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDG-
MENT. BOTH PARTIES TO THE ACTION  OR  PROCEEDING  AND  THEIR  RESPECTIVE
ATTORNEYS,  SHALL  FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINAN-
CIAL AGREEMENT BETWEEN THE PARTY AND THE ATTORNEY. SUCH AFFIDAVIT  SHALL
INCLUDE  THE  AMOUNT  OF  ANY RETAINER, THE AMOUNTS PAID AND STILL OWING
THEREUNDER, THE HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID,
OR TO BE PAID, ANY EXPERTS, AND ANY ADDITIONAL COSTS,  DISBURSEMENTS  OR
EXPENSES.  IN  FIXING FEES AND EXPENSES WHICH THE COURT DETERMINES SHALL
BE PAID BY EITHER PARTY TO ENABLE THE OTHER PARTY TO CARRY ON OR  DEFEND
THE  ACTION OR PROCEEDING, THE COURT SHALL FIX THE AMOUNT TO BE PAID FOR
SUCH PROSECUTION OR DEFENSE OF THE ACTION OR  PROCEEDING  AT  AN  AMOUNT
EQUAL  TO  THE  HOURLY  RATE  ORDINARILY  AND CUSTOMARILY CHARGED BY THE
ATTORNEY FOR THE PARTY REQUIRED TO  PAY  SUCH  COUNSEL  FEES;  PROVIDED,
HOWEVER,  IF  THE  HOURLY RATE ORDINARILY AND CUSTOMARILY CHARGED BY THE
ATTORNEY FOR THE PARTY PETITIONING FOR SUCH AWARD IS  LOWER,  SUCH  FEES
SHALL  BE FIXED AT THE HOURLY RATE ORDINARILY AND CUSTOMARILY CHARGED BY
SUCH ATTORNEY FOR SUCH LEGAL SERVICES. THE FOREGOING PROVISION SHALL NOT
BAR AN AWARD FOR COUNSEL FEES AT A RATE HIGHER THAN THE FEES CHARGED  BY
THE  ATTORNEY  FOR THE PARTY REQUIRED TO PAY SUCH COUNSEL FEES IN APPRO-
PRIATE CIRCUMSTANCES.  Any applications for [counsel] fees and  expenses
may  be  maintained by the attorney for either spouse in his own name in

A. 2580--B                          4

the same proceeding.  PAYMENT OF ANY RETAINER FEES TO THE  ATTORNEY  FOR
THE PETITIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES
TO AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  (b) Upon any application to ENFORCE, annul or modify an order or judg-
ment for alimony, MAINTENANCE, DISTRIBUTIVE AWARD, DISTRIBUTION OF MARI-
TAL PROPERTY or for custody, visitation, or maintenance of a child, made
as  in  section  two  hundred thirty-six or section two hundred forty OF
THIS ARTICLE provided, or upon any application by writ of habeas  corpus
or by petition and order to show cause concerning custody, visitation or
maintenance  of  a child, the court may direct a spouse or parent to pay
[such sum or sums of money for the prosecution or the defense of]  COUN-
SEL  FEES  AND  FEES AND EXPENSES OF EXPERTS DIRECTLY TO THE ATTORNEY OF
THE OTHER SPOUSE OR PARENT TO ENABLE THE OTHER  PARTY  TO  CARRY  ON  OR
DEFEND  the  application or proceeding by the other spouse or parent as,
in the court's  discretion,  justice  requires,  having  regard  to  the
circumstances  of  the case and of the respective parties. [With respect
to any such application or proceeding, such direction may be made in the
order or judgment by which the particular application or  proceeding  is
finally  determined,  or  by one or more orders from time to time before
the final order or judgment, or by both such order  or  orders  and  the
final  order  or  judgment] THERE SHALL BE A REBUTTABLE PRESUMPTION THAT
COUNSEL FEES SHALL BE AWARDED TO THE LESS MONIED SPOUSE.  IN  EXERCISING
THE  COURT'S  DISCRETION, THE COURT SHALL SEEK TO ASSURE THAT EACH PARTY
SHALL BE ADEQUATELY REPRESENTED AND THAT WHERE FEES AND EXPENSES ARE  TO
BE  AWARDED,  THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE LITE, SO
AS TO ENABLE  ADEQUATE  REPRESENTATION  FROM  THE  COMMENCEMENT  OF  THE
PROCEEDING.  APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES MAY BE MADE
AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES TO THE ACTION
OR  PROCEEDING  AND  THEIR RESPECTIVE ATTORNEYS, SHALL FILE AN AFFIDAVIT
WITH THE COURT DETAILING THE FINANCIAL AGREEMENT, BETWEEN THE PARTY  AND
THE  ATTORNEY.  SUCH AFFIDAVIT SHALL INCLUDE THE AMOUNT OF ANY RETAINER,
THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE HOURLY  AMOUNT  CHARGED
BY  THE  ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS, AND ANY
ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES. IN FIXING FEES AND EXPENSES
WHICH THE COURT DETERMINES SHALL BE PAID BY EITHER PARTY TO  ENABLE  THE
OTHER  PARTY  TO  CARRY ON OR DEFEND THE ACTION OR PROCEEDING, THE COURT
SHALL FIX THE AMOUNT TO BE PAID FOR SUCH PROSECUTION OR DEFENSE  OF  THE
ACTION  OR  PROCEEDING  AT AN AMOUNT EQUAL TO THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY  REQUIRED  TO  PAY
SUCH  COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOURLY RATE ORDINARILY AND
CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY PETITIONING  FOR  SUCH
AWARD  IS  LOWER, SUCH FEES SHALL BE FIXED AT THE HOURLY RATE ORDINARILY
AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH  LEGAL  SERVICES.  THE
FOREGOING  PROVISION  SHALL  NOT BAR AN AWARD FOR COUNSEL FEES AT A RATE
HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR THE PARTY  REQUIRED  TO
PAY  SUCH  COUNSEL  FEES IN APPROPRIATE CIRCUMSTANCES.  Any applications
for [counsel] fees and expenses may be maintained by  the  attorney  for
either  spouse in counsel's own name in the same proceeding.  [Represen-
tation by an attorney pursuant to paragraph (b) of subdivision  nine  of
section  one  hundred  eleven-b  of  the  social  services law shall not
preclude an award of counsel fees to an applicant which would  otherwise
be  allowed  under  this  section.]  PAYMENT OF ANY RETAINER FEES TO THE
ATTORNEY FOR THE PETITIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES
AND EXPENSES TO AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS
SECTION.

A. 2580--B                          5

  S 7. Section 238 of the domestic relations law, as amended by  chapter
529 of the laws of 1978, is amended to read as follows:
  S  238.  Expenses  in enforcement AND MODIFICATION proceedings AND FOR
APPEALS.  In any action or proceeding to [compel the payment of any  sum
of  money  required to be paid by] ENFORCE OR MODIFY ANY PROVISION OF OR
TO CARRY ON OR DEFEND ANY APPEAL FROM a judgment or order entered in  an
action  for  divorce, separation, annulment [or], declaration of nullity
of a void marriage, DECLARATION OF VALIDITY OR NULLITY OF A JUDGMENT  OF
DIVORCE  RENDERED  AGAINST  A SPOUSE WHO WAS THE DEFENDANT IN ANY ACTION
OUTSIDE THE STATE OF NEW YORK AND DID  NOT  APPEAR  THEREIN  WHERE  SUCH
SPOUSE  ASSERTS  THE  NULLITY OF SUCH FOREIGN JUDGMENT, OR AN INJUNCTION
RESTRAINING THE PROSECUTION IN ANY OTHER JURISDICTION OF AN ACTION FOR A
DIVORCE, or in any proceeding pursuant to  section  two  hundred  forty-
three,  two  hundred  forty-four, two hundred forty-five, or two hundred
forty-six OF THIS ARTICLE, the  court  may  in  its  discretion  require
either party to pay [the expenses of the other in bringing, carrying on,
or  defending  such  action  or  proceeding]  COUNSEL  FEES AND FEES AND
EXPENSES OF EXPERTS DIRECTLY TO THE  ATTORNEY  OF  THE  OTHER  PARTY  TO
ENABLE  THE  OTHER  PARTY TO CARRY ON OR DEFEND THE ACTION OR PROCEEDING
AS, IN THE COURT'S DISCRETION, JUSTICE REQUIRES  HAVING  REGARD  TO  THE
CIRCUMSTANCES  OF THE CASE AND OF THE RESPECTIVE PARTIES. THERE SHALL BE
A REBUTTABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED TO THE  LESS
MONIED  SPOUSE.  In any such action [or], proceeding OR APPEAL, applica-
tions for [counsel] fees and expenses may be maintained by the  attorney
for  the  respective  parties in counsel's own name and in counsel's own
behalf.  IN EXERCISING THE COURT'S DISCRETION, THE COURT SHALL  SEEK  TO
ASSURE  THAT  EACH  PARTY SHALL BE ADEQUATELY REPRESENTED AND THAT WHERE
FEES AND EXPENSES ARE TO BE AWARDED, THEY SHALL BE AWARDED ON  A  TIMELY
BASIS,  PENDENTE  LITE, SO AS TO ENABLE ADEQUATE REPRESENTATION FROM THE
COMMENCEMENT OF THE PROCEEDING. APPLICATIONS FOR THE AWARD OF  FEES  AND
EXPENSES  MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH
PARTIES TO THE ACTION OR  PROCEEDING  AND  THEIR  RESPECTIVE  ATTORNEYS,
SHALL FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINANCIAL AGREEMENT
BETWEEN  THE  PARTY  AND  THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE
AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE  PAID,
ANY  EXPERTS,  AND  ANY ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES.  IN
FIXING FEES AND EXPENSES WHICH THE COURT DETERMINES  SHALL  BE  PAID  BY
EITHER  PARTY TO ENABLE THE OTHER PARTY TO CARRY ON OR DEFEND THE ACTION
OR PROCEEDING, THE COURT SHALL FIX AN AMOUNT TO BE PAID FOR SUCH  PROSE-
CUTION  OR DEFENSE OF THE ACTION OR PROCEEDING AT AN AMOUNT EQUAL TO THE
HOURLY RATE ORDINARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY  FOR  THE
PARTY REQUIRED TO PAY SUCH COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOUR-
LY RATE ORDINARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY
PETITIONING  FOR  SUCH  AWARD  IS LOWER, SUCH FEES SHALL BE FIXED AT THE
HOURLY RATE ORDINARILY AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH
LEGAL SERVICES. THE FOREGOING PROVISION SHALL NOT BAR AN AWARD FOR COUN-
SEL FEES AT A RATE HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR  THE
PARTY  REQUIRED  TO  PAY SUCH COUNSEL FEES IN APPROPRIATE CIRCUMSTANCES.
PAYMENT OF ANY RETAINER FEES TO THE ATTORNEY FOR THE  PETITIONING  PARTY
SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO AN APPLICANT WHICH
WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S 8. Section 438 of the family court act, as amended by chapter 892 of
the laws of 1986, is amended to read as follows:
  S 438. Counsel fees. (a) In any proceeding under this article, includ-
ing proceedings for support of a spouse OR FORMER SPOUSE and children OF

A. 2580--B                          6

THE  PARTIES,  [or] for support of children only, [or at any hearing] IN
ANY PROCEEDING to modify  or  enforce  an  order  entered  in  [that]  A
proceeding  UNDER  THIS  ARTICLE,  or a proceeding to modify a decree of
divorce,  separation,  or  annulment,  including an appeal under article
eleven OF THIS ACT, the court may allow counsel fees [at  any  stage  of
the  proceeding],  AND  FEES  AND  EXPENSES  OF EXPERTS DIRECTLY, to the
attorney representing [the spouse, former spouse or person on behalf  of
children]  ANY  PARTY  TO  ENABLE  SUCH  PARTY TO CARRY ON OR DEFEND THE
PROCEEDING AS, IN THE COURT'S DISCRETION, HAVING REGARD TO  THE  CIRCUM-
STANCES  OF  THE  CASE  AND  OF THE RESPECTIVE PARTIES. THERE SHALL BE A
REBUTTABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED  TO  THE  LESS
MONIED  SPOUSE.    IN EXERCISING THE COURT'S DISCRETION, THE COURT SHALL
SEEK TO ASSURE THAT EACH PARTY SHALL BE ADEQUATELY REPRESENTED AND  THAT
WHERE  FEES  AND  EXPENSES ARE TO BE AWARDED, THEY SHALL BE AWARDED ON A
TIMELY BASIS, PENDENTE LITE, SO AS  TO  ENABLE  ADEQUATE  REPRESENTATION
FROM  THE  COMMENCEMENT OF THE PROCEEDING. APPLICATIONS FOR THE AWARD OF
FEES AND EXPENSES MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL  JUDG-
MENT.  BOTH  PARTIES  TO  THE  ACTION OR PROCEEDING AND THEIR RESPECTIVE
ATTORNEYS SHALL FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINANCIAL
AGREEMENT BETWEEN THE PARTY  AND  THE  ATTORNEY.  SUCH  AFFIDAVIT  SHALL
INCLUDE  THE  AMOUNT  OF  ANY RETAINER, THE AMOUNTS PAID AND STILL OWING
THEREUNDER, THE HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID,
OR TO BE PAID, ANY EXPERTS, AND ANY ADDITIONAL COSTS,  DISBURSEMENTS  OR
EXPENSES.  IN  FIXING FEES AND EXPENSES WHICH THE COURT DETERMINES SHALL
BE PAID BY EITHER PARTY TO ENABLE THE OTHER PARTY TO CARRY ON OR  DEFEND
THE  ACTION OR PROCEEDING, THE COURT SHALL FIX THE AMOUNT TO BE PAID FOR
SUCH PROSECUTION OR DEFENSE OF THE ACTION OR  PROCEEDING  AT  AN  AMOUNT
EQUAL  TO  THE  HOURLY  RATE  ORDINARILY  AND CUSTOMARILY CHARGED BY THE
ATTORNEY FOR THE PARTY REQUIRED TO PAY SUCH COUNSEL FEE.  THE  FOREGOING
PROVISION  SHALL NOT BAR AN AWARD FOR COUNSEL FEES AT A RATE HIGHER THAN
THE FEES CHARGED BY THE ATTORNEY FOR THE  PARTY  REQUIRED  TO  PAY  SUCH
COUNSEL FEES IN APPROPRIATE CIRCUMSTANCES. ANY APPLICATIONS FOR FEES AND
EXPENSES  MAY  BE  MAINTAINED BY THE ATTORNEY FOR EITHER SPOUSE IN COUN-
SEL'S OWN NAME IN THE SAME PROCEEDING. PAYMENT OF ANY RETAINER  FEES  TO
THE  ATTORNEY FOR THE PETITIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF
FEES AND EXPENSES TO AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER
THIS SECTION.
  (b) In any proceeding for failure to obey any lawful order  compelling
payment  of  support  of  a  spouse or former spouse and children, or of
children only, the court shall, upon a finding  that  such  failure  was
willful,  order  respondent to pay counsel fees AND FEES AND EXPENSES OF
EXPERTS DIRECTLY to the attorney representing the petitioner  or  person
on  behalf  of the children.  [Representation by an attorney pursuant to
paragraph (b) of subdivision nine of section one hundred eleven-b of the
social services law shall not preclude an award of counsel  fees  to  an
applicant  which  would  otherwise  be allowed under this section.] BOTH
PARTIES TO THE ACTION OR PROCEEDING AND THEIR RESPECTIVE ATTORNEYS SHALL
FILE AN AFFIDAVIT WITH  THE  COURT  DETAILING  THE  FINANCIAL  AGREEMENT
BETWEEN  THE  PARTY  AND  THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE
AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE  PAID,
ANY  EXPERTS  AND  ANY  ADDITIONAL  COSTS, DISBURSEMENTS OR EXPENSES. IN
FIXING FEES AND EXPENSES WHICH THE COURT DETERMINES SHALL  BE  PAID  THE
COURT  SHALL  FIX THE AMOUNT AT AN AMOUNT EQUAL TO THE HOURLY RATE ORDI-
NARILY AND CUSTOMARILY CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED TO
PAY SUCH COUNSEL FEES; PROVIDED, HOWEVER, IF THE HOURLY RATE  ORDINARILY

A. 2580--B                          7

AND  CUSTOMARILY  CHARGED  BY THE ATTORNEY FOR THE PARTY PETITIONING FOR
SUCH AWARD IS LOWER, SUCH FEES SHALL BE FIXED AT THE HOURLY  RATE  ORDI-
NARILY AND CUSTOMARILY CHARGED BY SUCH ATTORNEY FOR SUCH LEGAL SERVICES.
THE  FOREGOING  PROVISION  SHALL  NOT BAR AN AWARD FOR COUNSEL FEES AT A
RATE HIGHER THAN THE FEES CHARGED BY THE ATTORNEY FOR THE PARTY REQUIRED
TO PAY SUCH COUNSEL FEES IN APPROPRIATE CIRCUMSTANCES.  ANY  APPLICATION
FOR  FEES  AND  EXPENSES  MAY  BE  MAINTAINED BY THE ATTORNEY FOR EITHER
SPOUSE IN HIS OWN NAME IN THE SAME PROCEEDING.  PAYMENT OF ANY  RETAINER
FEES  TO  THE  ATTORNEY FOR THE PETITIONING PARTY SHALL NOT PRECLUDE ANY
AWARDS OF FEES AND EXPENSES TO AN APPLICANT  WHICH  WOULD  OTHERWISE  BE
ALLOWED UNDER THIS SECTION.
  S  9.  This  act  shall take effect on the sixtieth day after it shall
have become a law and shall apply to any action or proceeding  commenced
on or after such effective date.

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

                                 2580--C

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 20, 2009
                               ___________

Introduced  by  M. of A. WEINSTEIN, PAULIN, CYMBROWITZ, JAFFEE, GUNTHER,
  PERRY, LANCMAN, TITUS, COOK, SKARTADOS -- Multi-Sponsored by -- M.  of
  A.  DESTITO,  FIELDS,  GABRYSZAK, HOOPER, JOHN, KOON, MARKEY, MILLMAN,
  NOLAN, PEOPLES-STOKES, REILLY, TOWNS,  WEISENBERG  --  read  once  and
  referred  to  the Committee on Judiciary -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee  --  recommitted  to the Committee on Judiciary in accordance with
  Assembly Rule 3, sec. 2 -- 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 and the family court act,  in
  relation to enacting the "Divorce Reform Act of 2010"

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

  Section 1. Short title. This act shall be known and may  be  cited  as
the "Divorce Reform Act of 2010".
  S  2.  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 six of this part,  to  be  paid  at  fixed
intervals  [for  a  definite  or indefinite] EITHER PERMANENTLY OR FOR A
FIXED 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)] B of subdivi-
sion nine of [section two hundred thirty-six of] this  part  or  section
two  hundred  forty-eight of this [chapter] ARTICLE. FAILURE TO STATE IN
AN AGREEMENT BETWEEN THE PARTIES, OR IN A COURT ORDER, THAT THE  RECIPI-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01545-14-0

              

A. 2580--C                          2

ENT'S  RE-MARRIAGE  SHALL  TERMINATE  AN AWARD OF MAINTENANCE, SHALL NOT
PREVENT THE TERMINATION OF SUCH MAINTENANCE.
  S  3.  Subparagraph  2  of  paragraph  d of subdivision 5 of part B of
section 236 of the domestic relations law, as added by  chapter  281  of
the laws of 1980, is amended to read as follows:
  (2)  the  duration  of  the  marriage  and  the age and health of both
parties AND THE POST-DIVORCE STANDARDS OF LIVING OF THE PARTIES;
  S 4. The opening paragraph of paragraph a and paragraph c of  subdivi-
sion  6  of  part  B  of  section  236 of the domestic relations law, as
amended by chapter 884 of the laws of  1986,  are  amended  to  read  as
follows:
  Except  where  the  parties have entered into an agreement pursuant to
subdivision three of this part providing for maintenance, in any  matri-
monial  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 respec-
tive parties. Such order]. IN THOSE SITUATIONS WHERE THE  PARTY  SEEKING
MAINTENANCE  IS UNABLE TO MAINTAIN THE STANDARD OF LIVING OF THE PARTIES
ESTABLISHED DURING THE MARRIAGE DUE TO THE  DURATION  OF  THE  MARRIAGE,
AGE,  HEALTH,  OR  REDUCED OR LOST LIFETIME EARNING CAPACITY, OR LOSS OF
HEALTH INSURANCE BENEFITS, OR THE NEEDS OF MINOR OR DEPENDENT  CHILDREN,
THE  COURT  SHALL  ORDER PERMANENT MAINTENANCE, SUBJECT TO MODIFICATION,
PURSUANT TO PARAGRAPH B OF SUBDIVISION NINE OF THIS PART, IN  AN  AMOUNT
SUFFICIENT  TO  ELIMINATE  THE DISPARITY IN THE POST-DIVORCE STANDARD OF
LIVING OF THE PARTIES.  ORDERS OF MAINTENANCE 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  mainte-
nance the court shall consider:
  c.  [The court may award permanent maintenance, but an award of] WHERE
THE COURT ORDERS PERMANENT MAINTENANCE OR MAINTENANCE FOR A FIXED  PERI-
OD,  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)] B of subdivision nine of [section two  hundred  thir-
ty-six  of]  this part or section two hundred forty-eight of this [chap-
ter] ARTICLE. FAILURE TO STATE IN AN AGREEMENT BETWEEN THE  PARTIES,  OR
IN  A  COURT  ORDER, THAT THE RECIPIENT'S RE-MARRIAGE SHALL TERMINATE AN
AWARD OF MAINTENANCE, SHALL NOT PREVENT THE TERMINATION OF SUCH  MAINTE-
NANCE.
  S  5. Section 170 of the domestic relations law is amended by adding a
new subdivision 7 to read as follows:
  (7) IRRECONCILABLE DIFFERENCES HAVE ARISEN BETWEEN  THE  PARTIES  SUCH
THAT THERE IS NO REASONABLE PROSPECT OF RECONCILIATION. THERE SHALL BE A
PRESUMPTION  THAT,  AFTER  TWELVE CONSECUTIVE MONTHS OF SEPARATE HABITA-
TION, NO REASONABLE PROSPECT OF RECONCILIATION EXISTS. NOTHING  IN  THIS
SUBDIVISION  SHALL  RELIEVE A PARTY FROM HIS OR HER OBLIGATION TO COMPLY
SUBSTANTIALLY WITH ALL THE TERMS AND CONDITIONS OF ANY DECREE  OR  JUDG-
MENT  OF  SEPARATION  PURSUANT TO SUBDIVISION FIVE OF THIS SECTION OR OF
ANY WRITTEN AGREEMENT OF SEPARATION PURSUANT TO SUBDIVISION SIX OF  THIS
SECTION.  THE  COURT  SHALL  NOT  AWARD SUMMARY JUDGMENT ON ANY CAUSE OF
ACTION BROUGHT PURSUANT TO THIS SUBDIVISION. IN THE ABSENCE OF  A  VALID

A. 2580--C                          3

WRITTEN  AND  FULLY  EXECUTED  AGREEMENT  OF  SEPARATION, JUDGMENT IN AN
ACTION BROUGHT PURSUANT TO THIS SUBDIVISION SHALL NOT BE  GRANTED  UNTIL
THE  ECONOMIC  ISSUES BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO,
THE DISTRIBUTION OF MARITAL PROPERTY, SPOUSAL SUPPORT AND CHILD SUPPORT,
AND  CUSTODY  AND VISITATION HAVE BEEN DECIDED BY THE COURT AND INCORPO-
RATED IN THE FINAL JUDGMENT OF DIVORCE.
  S 6. Subdivisions (a) and (b) of section 237 of the domestic relations
law, subdivision (a) as amended by chapter 482 of the laws of  1987  and
subdivision  (b)  as  amended  by  chapter  892 of the laws of 1986, are
amended to read as follows:
  (a) In any action or proceeding brought (1) to annul a marriage or  to
declare  the nullity of a void marriage, or (2) for a separation, or (3)
for a divorce, or (4) to declare the validity or nullity of  a  judgment
of divorce rendered against a spouse who was the defendant in any action
outside  the  State  of  New York and did not appear therein where  such
spouse asserts the nullity of such foreign judgment, [or] (5) TO  OBTAIN
MAINTENANCE  OR DISTRIBUTION OF PROPERTY FOLLOWING A FOREIGN JUDGMENT OF
DIVORCE, OR (6) to enjoin the prosecution in any other  jurisdiction  of
an  action  for a divorce, the court may direct either spouse  or, where
an action for annulment is maintained after the death of a  spouse,  may
direct the person or persons maintaining the action, to pay [such sum or
sums of money] COUNSEL FEES AND FEES AND EXPENSES OF EXPERTS directly to
the    attorney  of  the  other spouse to enable [that spouse] THE OTHER
PARTY to carry on or defend the action or proceeding as, in the  court's
discretion,  justice requires, having regard to the circumstances of the
case and of the respective parties. [Such direction must be made in  the
final  judgment  in  such action or proceeding, or by one or more orders
from time to time before final judgment, or by both such order or orders
and the final judgment; provided, however, such direction shall be  made
prior to final judgment where it is shown that such order is required to
enable  the  petitioning  party  to  properly  proceed] THERE SHALL BE A
REBUTTABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED  TO  THE  LESS
MONIED  SPOUSE.  IN  EXERCISING  THE COURT'S DISCRETION, THE COURT SHALL
SEEK TO ASSURE THAT EACH PARTY SHALL BE ADEQUATELY REPRESENTED AND  THAT
WHERE  FEES  AND  EXPENSES ARE TO BE AWARDED, THEY SHALL BE AWARDED ON A
TIMELY BASIS, PENDENTE LITE, SO AS  TO  ENABLE  ADEQUATE  REPRESENTATION
FROM  THE COMMENCEMENT OF THE PROCEEDING.  APPLICATIONS FOR THE AWARD OF
FEES AND EXPENSES MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL  JUDG-
MENT.  BOTH  PARTIES  TO  THE  ACTION OR PROCEEDING AND THEIR RESPECTIVE
ATTORNEYS, SHALL FILE AN AFFIDAVIT WITH THE COURT DETAILING  THE  FINAN-
CIAL  AGREEMENT BETWEEN THE PARTY AND THE ATTORNEY. SUCH AFFIDAVIT SHALL
INCLUDE THE AMOUNT OF ANY RETAINER, THE AMOUNTS  PAID  AND  STILL  OWING
THEREUNDER, THE HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID,
OR  TO  BE PAID, ANY EXPERTS, AND ANY ADDITIONAL COSTS, DISBURSEMENTS OR
EXPENSES.  Any applications for [counsel] fees and expenses may be main-
tained by the attorney for either spouse in his own  name  in  the  same
proceeding.   PAYMENT OF ANY RETAINER FEES TO THE ATTORNEY FOR THE PETI-
TIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES  TO  AN
APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  (b) Upon any application to ENFORCE, annul or modify an order or judg-
ment for alimony, MAINTENANCE, DISTRIBUTIVE AWARD, DISTRIBUTION OF MARI-
TAL PROPERTY or for custody, visitation, or maintenance of a child, made
as  in  section  two  hundred thirty-six or section two hundred forty OF
THIS ARTICLE provided, or upon any application by writ of habeas  corpus
or by petition and order to show cause concerning custody, visitation or
maintenance  of  a child, the court may direct a spouse or parent to pay

A. 2580--C                          4

[such sum or sums of money for the prosecution or the defense of]  COUN-
SEL  FEES  AND  FEES AND EXPENSES OF EXPERTS DIRECTLY TO THE ATTORNEY OF
THE OTHER SPOUSE OR PARENT TO ENABLE THE OTHER  PARTY  TO  CARRY  ON  OR
DEFEND  the  application or proceeding by the other spouse or parent as,
in the court's  discretion,  justice  requires,  having  regard  to  the
circumstances  of  the case and of the respective parties. [With respect
to any such application or proceeding, such direction may be made in the
order or judgment by which the particular application or  proceeding  is
finally  determined,  or  by one or more orders from time to time before
the final order or judgment, or by both such order  or  orders  and  the
final  order  or  judgment] THERE SHALL BE A REBUTTABLE PRESUMPTION THAT
COUNSEL FEES SHALL BE AWARDED TO THE LESS MONIED SPOUSE.  IN  EXERCISING
THE  COURT'S  DISCRETION, THE COURT SHALL SEEK TO ASSURE THAT EACH PARTY
SHALL BE ADEQUATELY REPRESENTED AND THAT WHERE FEES AND EXPENSES ARE  TO
BE  AWARDED,  THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE LITE, SO
AS TO ENABLE  ADEQUATE  REPRESENTATION  FROM  THE  COMMENCEMENT  OF  THE
PROCEEDING.  APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES MAY BE MADE
AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES TO THE ACTION
OR  PROCEEDING  AND  THEIR RESPECTIVE ATTORNEYS, SHALL FILE AN AFFIDAVIT
WITH THE COURT DETAILING THE FINANCIAL AGREEMENT, BETWEEN THE PARTY  AND
THE  ATTORNEY.  SUCH AFFIDAVIT SHALL INCLUDE THE AMOUNT OF ANY RETAINER,
THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE HOURLY  AMOUNT  CHARGED
BY  THE  ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS, AND ANY
ADDITIONAL COSTS, DISBURSEMENTS  OR  EXPENSES.    Any  applications  for
[counsel] fees and expenses may be maintained by the attorney for either
spouse in counsel's own name in the same proceeding.  [Representation by
an attorney pursuant to paragraph (b) of subdivision nine of section one
hundred  eleven-b of the social services law shall not preclude an award
of counsel fees to an applicant which would otherwise be  allowed  under
this  section.]  PAYMENT  OF  ANY  RETAINER FEES TO THE ATTORNEY FOR THE
PETITIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES  TO
AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S  7. Section 238 of the domestic relations law, as amended by chapter
529 of the laws of 1978, is amended to read as follows:
  S 238. Expenses in enforcement AND MODIFICATION proceedings.   In  any
action or proceeding to [compel the payment of any sum of money required
to  be  paid  by] ENFORCE OR MODIFY ANY PROVISION OF a judgment or order
entered in an action for divorce, separation, annulment  [or],  declara-
tion  of  nullity of a void marriage, DECLARATION OF VALIDITY OR NULLITY
OF A JUDGMENT OF DIVORCE RENDERED AGAINST A SPOUSE WHO WAS THE DEFENDANT
IN ANY ACTION OUTSIDE THE STATE OF NEW YORK AND DID NOT  APPEAR  THEREIN
WHERE  SUCH  SPOUSE  ASSERTS THE NULLITY OF SUCH FOREIGN JUDGMENT, OR AN
INJUNCTION RESTRAINING THE PROSECUTION IN ANY OTHER JURISDICTION  OF  AN
ACTION  FOR  A  DIVORCE,  or  in  any proceeding pursuant to section two
hundred forty-three, two hundred forty-four, two hundred forty-five,  or
two  hundred  forty-six OF THIS ARTICLE, the court may in its discretion
require either party to pay [the expenses  of  the  other  in  bringing,
carrying  on,  or  defending such action or proceeding] COUNSEL FEES AND
FEES AND EXPENSES OF EXPERTS DIRECTLY TO THE ATTORNEY OF THE OTHER PARTY
TO ENABLE THE OTHER PARTY TO CARRY ON OR DEFEND THE ACTION OR PROCEEDING
AS, IN THE COURT'S DISCRETION, JUSTICE REQUIRES  HAVING  REGARD  TO  THE
CIRCUMSTANCES  OF THE CASE AND OF THE RESPECTIVE PARTIES. THERE SHALL BE
A REBUTTABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED TO THE  LESS
MONIED SPOUSE. In any such action or proceeding, applications for [coun-
sel] fees and expenses may be maintained by the attorney for the respec-
tive  parties  in  counsel's  own  name and in counsel's own behalf.  IN

A. 2580--C                          5

EXERCISING THE COURT'S DISCRETION, THE COURT SHALL SEEK TO  ASSURE  THAT
EACH  PARTY  SHALL  BE  ADEQUATELY  REPRESENTED  AND THAT WHERE FEES AND
EXPENSES ARE TO BE AWARDED, THEY SHALL BE AWARDED  ON  A  TIMELY  BASIS,
PENDENTE  LITE,  SO  AS  TO  ENABLE  ADEQUATE  REPRESENTATION  FROM  THE
COMMENCEMENT OF THE PROCEEDING. APPLICATIONS FOR THE AWARD OF  FEES  AND
EXPENSES  MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH
PARTIES TO THE ACTION OR  PROCEEDING  AND  THEIR  RESPECTIVE  ATTORNEYS,
SHALL FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINANCIAL AGREEMENT
BETWEEN  THE  PARTY  AND  THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE
AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE  PAID,
ANY  EXPERTS,  AND  ANY  ADDITIONAL  COSTS,  DISBURSEMENTS  OR EXPENSES.
PAYMENT OF ANY RETAINER FEES TO THE ATTORNEY FOR THE  PETITIONING  PARTY
SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO AN APPLICANT WHICH
WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S 8. Section 438 of the family court act, as amended by chapter 892 of
the laws of 1986, is amended to read as follows:
  S 438. Counsel fees. (a) In any proceeding under this article, includ-
ing proceedings for support of a spouse OR FORMER SPOUSE and children OF
THE  PARTIES,  [or] for support of children only, [or at any hearing] IN
ANY PROCEEDING to modify  or  enforce  an  order  entered  in  [that]  A
proceeding  UNDER  THIS  ARTICLE,  or a proceeding to modify a decree of
divorce, separation, or annulment, including  an  appeal  under  article
eleven  OF  THIS  ACT, the court may allow counsel fees [at any stage of
the proceeding], AND FEES AND  EXPENSES  OF  EXPERTS  DIRECTLY,  to  the
attorney  representing [the spouse, former spouse or person on behalf of
children] ANY PARTY TO ENABLE SUCH PARTY  TO  CARRY  ON  OR  DEFEND  THE
PROCEEDING  AS,  IN THE COURT'S DISCRETION, HAVING REGARD TO THE CIRCUM-
STANCES OF THE CASE AND OF THE RESPECTIVE  PARTIES.  THERE  SHALL  BE  A
REBUTTABLE  PRESUMPTION  THAT  COUNSEL FEES SHALL BE AWARDED TO THE LESS
MONIED SPOUSE.  IN EXERCISING THE COURT'S DISCRETION,  THE  COURT  SHALL
SEEK  TO ASSURE THAT EACH PARTY SHALL BE ADEQUATELY REPRESENTED AND THAT
WHERE FEES AND EXPENSES ARE TO BE AWARDED, THEY SHALL BE  AWARDED  ON  A
TIMELY  BASIS,  PENDENTE  LITE,  SO AS TO ENABLE ADEQUATE REPRESENTATION
FROM THE COMMENCEMENT OF THE PROCEEDING. APPLICATIONS FOR THE  AWARD  OF
FEES  AND EXPENSES MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDG-
MENT. BOTH PARTIES TO THE ACTION  OR  PROCEEDING  AND  THEIR  RESPECTIVE
ATTORNEYS SHALL FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINANCIAL
AGREEMENT  BETWEEN  THE  PARTY  AND  THE  ATTORNEY. SUCH AFFIDAVIT SHALL
INCLUDE THE AMOUNT OF ANY RETAINER, THE AMOUNTS  PAID  AND  STILL  OWING
THEREUNDER, THE HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID,
OR  TO  BE PAID, ANY EXPERTS, AND ANY ADDITIONAL COSTS, DISBURSEMENTS OR
EXPENSES.  ANY APPLICATIONS FOR FEES AND EXPENSES MAY BE  MAINTAINED  BY
THE  ATTORNEY  FOR  EITHER  SPOUSE  IN  COUNSEL'S  OWN  NAME IN THE SAME
PROCEEDING. PAYMENT OF ANY RETAINER FEES TO THE ATTORNEY FOR  THE  PETI-
TIONING  PARTY  SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO AN
APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
  (b) In any proceeding for failure to obey any lawful order  compelling
payment  of  support  of  a  spouse or former spouse and children, or of
children only, the court shall, upon a finding  that  such  failure  was
willful,  order  respondent to pay counsel fees AND FEES AND EXPENSES OF
EXPERTS DIRECTLY to the attorney representing the petitioner  or  person
on  behalf  of the children.  [Representation by an attorney pursuant to
paragraph (b) of subdivision nine of section one hundred eleven-b of the
social services law shall not preclude an award of counsel  fees  to  an
applicant  which  would  otherwise  be allowed under this section.] BOTH

A. 2580--C                          6

PARTIES TO THE ACTION OR PROCEEDING AND THEIR RESPECTIVE ATTORNEYS SHALL
FILE AN AFFIDAVIT WITH  THE  COURT  DETAILING  THE  FINANCIAL  AGREEMENT
BETWEEN  THE  PARTY  AND  THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE
AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
HOURLY  AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID,
ANY EXPERTS AND ANY ADDITIONAL COSTS, DISBURSEMENTS OR  EXPENSES.    ANY
APPLICATION  FOR FEES AND EXPENSES MAY BE MAINTAINED BY THE ATTORNEY FOR
EITHER SPOUSE IN HIS OWN NAME IN THE SAME PROCEEDING.   PAYMENT  OF  ANY
RETAINER  FEES  TO  THE  ATTORNEY  FOR  THE  PETITIONING PARTY SHALL NOT
PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO  AN  APPLICANT  WHICH  WOULD
OTHERWISE BE ALLOWED UNDER THIS SECTION.
  S  9.  This  act  shall take effect on the sixtieth day after it shall
have become a law and shall apply to any action or proceeding  commenced
on or after such effective date.