Assembly Bill A7269

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

                                  7269

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 27, 2009
                               ___________

Introduced  by M. of A. PAULIN, TITUS, GALEF, JAFFEE, PEOPLES, N. RIVERA
  -- Multi-Sponsored by -- M. of A. CROUCH, ENGLEBRIGHT,  GORDON,  GOTT-
  FRIED,  McENENY,  MENG,  WEISENBERG  --  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   provisions   applicable  to  matrimonial  actions  and
  proceedings, actions for divorce and actions for separation

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

  Section  1.   Subparagraph 4 of paragraph d of subdivision 1 of part B
of section 236 of the domestic relations law, as amended by chapter  281
of  the  laws  of  1980, is amended and a new subparagraph 5 is added to
read as follows:
  (4) property described as separate property by  written  agreement  of
the parties pursuant to subdivision three of this part[.];
  (5)  MAINTENANCE OR POST-MARITAL INCOME PAID PURSUANT TO A COURT ORDER
OR SIGNED AGREEMENT PAID TO A FORMER SPOUSE DURING THE MARRIAGE.
  S 2.  Subdivision 6 of part B of section 236 of the domestic relations
law, as amended by chapter 884 of the laws of 1986 and  paragraph  d  as
added by chapter 415 of the laws of 1992, is amended to read as follows:
  6.  [Maintenance]    INTERIM MAINTENANCE AND POST-MARITAL INCOME OBLI-
GATION.  a. INTERIM MAINTENANCE. Except where the parties  have  entered
into  an  agreement pursuant to subdivision three of this part providing
for ALIMONY, maintenance OR  POST-MARITAL  INCOME,  in  any  matrimonial
action  the  court may order [temporary] INTERIM maintenance [or mainte-
nance] in such amount as justice requires, having regard for the  stand-
ard  of  living  of the parties established during the marriage, whether
the party in whose favor INTERIM 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08997-03-9
              

A. 7269                             2

of the respective parties. Such order shall be effective as of the  date
of the application therefor, and any retroactive amount of INTERIM main-
tenance  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:
  (1)  the income and property of the respective parties including mari-
tal property distributed pursuant to subdivision five of this part;
  (2) the duration of the marriage  and  the  age  and  health  of  both
parties;
  (3) the present and future earning capacity of both parties;
  (4)  the  ability of the party seeking maintenance to become self-sup-
porting and, if applicable, the period of time  and  training  necessary
therefor;
  (5)  reduced  or  lost  lifetime earning capacity of the party seeking
maintenance as a result of having foregone or delayed education,  train-
ing, employment, or career opportunities during the marriage;
  (6)  the  presence of children of the marriage in the respective homes
of the parties;
  (7) the tax consequences to each party;
  (8) contributions and services of the party seeking maintenance  as  a
spouse,  parent,  wage earner and homemaker, and to the career or career
potential of the other party;
  (9) the wasteful dissipation of marital property by either spouse;
  (10) any transfer or encumbrance made in contemplation of a matrimoni-
al action without fair consideration; and
  (11) any other factor which the court shall expressly find to be  just
and proper.
  b.  In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
  c. The court may award permanent maintenance, but an award of  mainte-
nance shall terminate upon the death of either party or upon the recipi-
ent's  valid or invalid marriage, or upon modification pursuant to para-
graph (b) of subdivision nine of section two hundred thirty-six of  this
part or section two hundred forty-eight of this chapter.
  d.  In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier  to  remarriage,  as
defined  in  subdivision  six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph a of this subdivision].
  B. POST-MARITAL INCOME.
  (1) EXCEPT WHERE THE PARTIES HAVE ENTERED INTO AN  AGREEMENT  PURSUANT
TO  SUBDIVISION THREE OF THIS PART PROVIDING FOR ALIMONY, MAINTENANCE OR
POST-MARITAL INCOME, THE COURT SHALL MAKE  ITS  AWARD  FOR  POST-MARITAL
INCOME PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH.
  (2)  FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL
BE USED:
  (A) "POST-MARITAL INCOME OBLIGATION" SHALL MEAN  THE  SUM  DERIVED  BY
ADDING THE AMOUNTS DETERMINED BY THE APPLICATION OF ITEMS (II) AND (III)
OF CLAUSE (A) OF SUBPARAGRAPH THREE OF THIS PARAGRAPH FOR THE DURATIONAL
PERIOD  DETERMINED  BY  THE  APPLICATION  OF  ITEM  (I) OF CLAUSE (B) OF
SUBPARAGRAPH THREE OF THIS PARAGRAPH.
  (B) "POST-MARITAL INCOME" SHALL MEAN A SUM TO BE PAID  PURSUANT  TO  A
FINAL  COURT ORDER OR DECREE DISSOLVING OR ANNULLING A MARRIAGE, DECLAR-
ING THE NULLITY OF  A  MARRIAGE,  OR  A  VALID  AGREEMENT,  BETWEEN  THE
PARTIES, BY ONE PARTY TO THE OTHER.

A. 7269                             3

  (C) "INCOME" SHALL MEAN:
  (I)  ALL FORMS OF INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT
AND CODIFIED UNDER SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION
FOUR HUNDRED THIRTEEN OF THE FAMILY COURT ACT;
  (II) INCOME FROM  INCOME  PRODUCING  PROPERTY  DISTRIBUTED  OR  TO  BE
DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
  (D)  "CAP"  SHALL  MEAN  COMBINED INCOME OF THE PARTIES OF ONE MILLION
DOLLARS ANNUALLY, INCREASED OR DECREASED ON MARCH FIRST OF EACH YEAR  BY
ANY  CHANGE  IN  THE  COST  OF LIVING AS DEFINED IN THE ANNUAL "CONSUMER
PRICE INDEX-ALL URBAN CONSUMERS, NEW  YORK,  NEW  YORK-NORTHEASTERN  NEW
JERSEY",  AS  PUBLISHED  BY THE BUREAU OF LABOR STATISTICS OF THE UNITED
STATES DEPARTMENT OF LABOR.
  (E) "SELF-SUPPORT RESERVE" SHALL  MEAN  THE  SELF-SUPPORT  RESERVE  AS
DEFINED  IN  THE  CHILD SUPPORT STANDARDS ACT AND CODIFIED UNDER SECTION
TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED  THIRTEEN  OF
THE FAMILY COURT ACT.
  (F) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
  (G) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
  (3)  THE AMOUNT AND DURATION OF THE POST-MARITAL INCOME OBLIGATION FOR
PARTIES WITH INCOMES AT OR BELOW THE CAP SHALL BE DETERMINED IN  ACCORD-
ANCE WITH THE PROVISIONS OF THIS SUBPARAGRAPH:
  (A) THE AMOUNT SHALL BE DETERMINED AS FOLLOWS:
  (I) THE COURT SHALL DETERMINE THE INCOME OF EACH PARTY.
  (II)  THE  COURT  SHALL  SUBTRACT  TWENTY PERCENT OF THE INCOME OF THE
PAYEE FROM THIRTY PERCENT OF THE INCOME OF THE PAYOR.
  (III) THE COURT SHALL THEN DETERMINE FORTY  PERCENT  OF  THE  COMBINED
INCOME OF THE PAYOR AND PAYEE.
  (IV)  THE  COURT  SHALL  CALCULATE  THE  DIFFERENCE BETWEEN THE AMOUNT
DERIVED FROM ITEM (III) OF THIS CLAUSE AND THE INCOME OF THE PAYEE.
  (V) THE AMOUNT SHALL BE THE LOWER OF THE AMOUNTS DETERMINED  BY  ITEMS
(II) AND (IV) OF THIS CLAUSE.
  (B) THE DURATION SHALL BE DETERMINED AS FOLLOWS:
  (I)  THE COURT SHALL DETERMINE THE DURATION OF THE AWARD OF POST-MARI-
TAL INCOME IN ACCORDANCE WITH THE FOLLOWING:

  LENGTH OF THE MARRIAGE           % OF THE LENGTH OF THE MARRIAGE FOR
                                        WHICH POST-MARITAL INCOME
                                        SHALL BE PAYABLE
  UP TO AND INCLUDING 5 YEARS                     30%
  OVER 5 YEARS UP TO AND INCLUD-
  ING 7.5 YEARS                                   40%
  OVER 7.5 YEARS UP TO AND INCLUD-
  ING 10 YEARS                                    50%
  OVER 10 YEARS UP TO AND INCLUD-
  ING 12.5 YEARS                                  60%
  OVER 12.5 YEARS UP TO AND INCLUD-
  ING 15 YEARS                                    70%
  OVER 15 YEARS UP TO AND INCLUD-
  ING 17.5 YEARS                                  80%
  OVER 17.5 YEARS UP TO AND INCLUD-
  ING 20 YEARS                                    90%
  OVER 20 YEARS UP TO AND INCLUD-
  ING 25 YEARS                                    100%
  OVER 25 YEARS                                   PERMANENT

A. 7269                             4

  (II) NOTWITHSTANDING THE PROVISIONS OF ITEM (I) OF  THIS  CLAUSE,  THE
POST-MARITAL  INCOME OBLIGATION SHALL TERMINATE UPON THE DEATH OF EITHER
PARTY.
  (C)  THE  COURT  SHALL  ORDER  THE  POST-MARITAL  INCOME OBLIGATION IN
ACCORDANCE WITH CLAUSES (A) AND (B) OF  THIS  SUBPARAGRAPH,  UNLESS  THE
COURT  FINDS  THAT THE POST-MARITAL INCOME OBLIGATION IS UNJUST OR INAP-
PROPRIATE AND ADJUSTS THE POST-MARITAL  INCOME  ACCORDINGLY  BASED  UPON
CONSIDERATION OF THE FOLLOWING FACTORS:
  (I) THE AGE AND HEALTH OF THE PARTIES;
  (II) THE FUTURE EARNING CAPACITY OF THE PARTIES;
  (III) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
  (IV) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMONI-
AL ACTION WITHOUT FAIR CONSIDERATION;
  (V)  THE  EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
  (VI) ACTS BY ONE PARTY AGAINST ANOTHER THAT CONSTITUTE EGREGIOUS FAULT
LIKELY TO SHOCK THE CONSCIENCE;
  (VII) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (VIII) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED  ADULT  CHILDREN
OR  STEPCHILDREN,  ELDERLY  PARENTS  OR  IN-LAWS  THAT  HAS INHIBITED OR
CONTINUES TO INHIBIT A PARTY'S EARNING CAPACITY;
  (IX) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE TO
AGE OR ABSENCE FROM THE WORKFORCE;
  (X) THE TAX CONSEQUENCES TO EACH PARTY;
  (XI) THE EQUITABLE DISTRIBUTION OF THE MARITAL PROPERTY; AND
  (XII) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
  (D) WHERE THE COURT FINDS THAT THE POST-MARITAL INCOME  OBLIGATION  IS
UNJUST  OR  INAPPROPRIATE  AND THE COURT ADJUSTS THE POST-MARITAL INCOME
OBLIGATION PURSUANT TO THIS PARAGRAPH, THE COURT SHALL SET FORTH,  IN  A
WRITTEN  ORDER,  THE  AMOUNT OF THE UNADJUSTED POST-MARITAL INCOME OBLI-
GATION, THE FACTORS IT  CONSIDERED,  AND  THE  REASONS  THAT  THE  COURT
ADJUSTED  THE POST-MARITAL INCOME OBLIGATION. SUCH WRITTEN ORDER MAY NOT
BE WAIVED BY EITHER PARTY OR COUNSEL.
  (E) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED,  THE  COURT  SHALL
NOT  ENTER A POST-MARITAL INCOME OBLIGATION ORDER OR JUDGMENT UNLESS THE
UNREPRESENTED PARTY OR PARTIES HAVE BEEN INFORMED  OF  THE  POST-MARITAL
INCOME OBLIGATION.
  (4)  THE  POST-MARITAL  INCOME  OBLIGATION FOR PARTIES WHOSE INCOME IS
ABOVE THE CAP SHALL BE ORDERED BY THE COURT IN SUCH  AMOUNT  AS  JUSTICE
REQUIRES.
  (A)  THE  COURT SHALL TAKE INTO CONSIDERATION THE FOLLOWING FACTORS IN
SETTING POST-MARITAL INCOME PURSUANT TO THIS SUBPARAGRAPH:
  (I) THE STANDARD OF LIVING  OF  THE  PARTIES  ESTABLISHED  DURING  THE
MARRIAGE;
  (II) THE AGE AND HEALTH OF THE PARTIES;
  (III) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES;
  (IV) THE DURATION OF THE MARRIAGE;
  (V) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
  (VI) THE EXTREME DIFFERENCES IN THE INCOMES OF THE PARTIES;
  (VII) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
  (VIII) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMO-
NIAL ACTION WITHOUT FAIR CONSIDERATION;
  (IX)  THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;

A. 7269                             5

  (X) ACTS BY ONE PARTY AGAINST ANOTHER THAT CONSTITUTE EGREGIOUS  FAULT
LIKELY TO SHOCK THE CONSCIENCE;
  (XI) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (XII)  THE  CARE OF THE CHILDREN OR STEPCHILDREN, DISABLED ADULT CHIL-
DREN OR STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS THAT HAS  INHIBITED  OR
CONTINUES TO INHIBIT A PARTY'S EARNING CAPACITY;
  (XIII)  THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE
TO AGE OR ABSENCE FROM THE WORKFORCE;
  (XIV) THE TAX CONSEQUENCES TO EACH PARTY;
  (XV) THE EQUITABLE DISTRIBUTION OF THE MARITAL PROPERTY;
  (XVI) THE REDUCED OR LOST LIFETIME EARNING CAPACITY OF THE PARTY SEEK-
ING POST-MARITAL INCOME AS A RESULT OF HAVING FOREGONE OR DELAYED EDUCA-
TION, TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE;
  (XVII) THE CONTRIBUTIONS AND SERVICES OF THE PARTY SEEKING  POST-MARI-
TAL  INCOME  AS  A  SPOUSE, PARENT, WAGE EARNER AND HOMEMAKER AND TO THE
CAREER OR CAREER POTENTIAL OF THE OTHER PARTY; AND
  (XVIII) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY  FIND  TO  BE
JUST AND PROPER.
  (B)  IN  ANY  DECISION  MADE  PURSUANT TO THIS SUBPARAGRAPH, THE COURT
SHALL SET FORTH THE FACTORS IT CONSIDERED AND THE REASONS FOR ITS  DECI-
SION.  SUCH WRITTEN ORDER MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
  (C)  THE POST-MARITAL INCOME OBLIGATION SHALL TERMINATE UPON THE DEATH
OF EITHER PARTY.
  (5) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH THREE OF THIS PARA-
GRAPH, AND WHERE THERE ARE NO UNEMANCIPATED  CHILDREN  OF  THE  MARRIAGE
UNDER  THE  AGE  OF  TWENTY-ONE,  AND  WHERE  THE  ANNUAL  AMOUNT OF THE
POST-MARITAL INCOME OBLIGATION WOULD REDUCE THE PAYOR'S INCOME BELOW THE
POVERTY INCOME GUIDELINES AMOUNT FOR A SINGLE PERSON AS REPORTED BY  THE
FEDERAL  DEPARTMENT  OF  HEALTH  AND  HUMAN  SERVICES,  THERE SHALL BE A
REBUTTABLE PRESUMPTION THAT THE POST-MARITAL INCOME OBLIGATION SHALL  BE
TWENTY-FIVE  DOLLARS  PER  MONTH  OR  THE DIFFERENCE BETWEEN THE PAYOR'S
INCOME AND THE SELF-SUPPORT RESERVE, WHICHEVER IS GREATER.
  (6) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH THREE OF THIS PARA-
GRAPH, AND WHERE THERE ARE NO UNEMANCIPATED  CHILDREN  OF  THE  MARRIAGE
UNDER  THE  AGE  OF  TWENTY-ONE,  AND  WHERE  THE  ANNUAL  AMOUNT OF THE
POST-MARITAL INCOME OBLIGATION WOULD REDUCE THE PAYOR'S INCOME BELOW THE
SELF-SUPPORT RESERVE BUT NOT BELOW THE POVERTY INCOME GUIDELINES  AMOUNT
FOR  A SINGLE PERSON AS REPORTED BY THE FEDERAL DEPARTMENT OF HEALTH AND
HUMAN SERVICES,  THE  POST-MARITAL  INCOME  OBLIGATION  SHALL  BE  FIFTY
DOLLARS  PER  MONTH OR THE DIFFERENCE BETWEEN THE PAYOR'S INCOME AND THE
SELF-SUPPORT RESERVE, WHICHEVER IS GREATER.
  (7) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH THREE OF THIS PARA-
GRAPH, AND WHERE THERE ARE UNEMANCIPATED CHILDREN OF THE MARRIAGE  UNDER
THE  AGE  OF TWENTY-ONE, AND WHERE THE ANNUAL AMOUNT OF THE POST-MARITAL
INCOME OBLIGATION WOULD REDUCE THE  PAYOR'S  INCOME  BELOW  THE  POVERTY
INCOME  GUIDELINES AMOUNT FOR A SINGLE PERSON AS REPORTED BY THE FEDERAL
DEPARTMENT OF HEALTH AND HUMAN SERVICES, NO POST-MARITAL INCOME SHALL BE
AWARDED.
  (8) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH THREE OF THIS PARA-
GRAPH, AND WHERE THERE ARE UNEMANCIPATED CHILDREN OF THE MARRIAGE  UNDER
THE  AGE  OF TWENTY-ONE, AND WHERE THE ANNUAL AMOUNT OF THE POST-MARITAL
INCOME OBLIGATION WOULD REDUCE THE PAYOR'S INCOME BELOW THE SELF-SUPPORT
RESERVE BUT NOT BELOW THE POVERTY INCOME GUIDELINES AMOUNT FOR A  SINGLE
PERSON  AS  REPORTED  BY  THE  FEDERAL  DEPARTMENT  OF  HEALTH AND HUMAN
SERVICES, NO POST-MARITAL INCOME SHALL BE AWARDED.

A. 7269                             6

  (9) A VALIDLY EXECUTED AGREEMENT OR  STIPULATION  VOLUNTARILY  ENTERED
INTO  BETWEEN  THE  PARTIES  AFTER  THE EFFECTIVE DATE OF THIS PARAGRAPH
PRESENTED TO THE COURT FOR INCORPORATION IN AN ORDER OR  JUDGMENT  SHALL
INCLUDE  A  PROVISION  STATING THAT THE PARTIES HAVE BEEN ADVISED OF THE
PROVISIONS OF THIS PARAGRAPH AND THE AMOUNT AND DURATION OF POST-MARITAL
INCOME  OBLIGATION.    IN  THE  EVENT THAT SUCH AGREEMENT OR STIPULATION
DEVIATES FROM THE POST-MARITAL INCOME OBLIGATION, THE AGREEMENT OR STIP-
ULATION SHALL SPECIFY THE REASON OR REASONS THAT SUCH AGREEMENT OR STIP-
ULATION DOES NOT PROVIDE FOR PAYMENT OF THAT AMOUNT.  THE PROVISIONS  OF
THIS  PARAGRAPH  MAY  NOT BE WAIVED BY EITHER PARTY OR COUNSEL.  NOTHING
CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO ALTER  THE  RIGHTS  OF
THE  PARTIES  TO  VOLUNTARILY  ENTER INTO VALIDLY EXECUTED AGREEMENTS OR
STIPULATIONS WHICH  DEVIATE  FROM  THE  POST-MARITAL  INCOME  OBLIGATION
PROVIDED  SUCH  AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF
THIS PARAGRAPH. THE COURT SHALL, HOWEVER, RETAIN DISCRETION WITH RESPECT
TO POST-MARITAL INCOME PURSUANT TO THIS  SECTION.  ANY  COURT  ORDER  OR
JUDGMENT INCORPORATING A VALIDLY EXECUTED AGREEMENT OR STIPULATION WHICH
DEVIATES  FROM  THE  POST-MARITAL  INCOME OBLIGATION SHALL SET FORTH THE
COURT'S REASONS FOR SUCH DEVIATION.
  (10) IN ADDITION TO FINANCIAL DISCLOSURE REQUIRED IN THIS SECTION, THE
COURT MAY REQUIRE THAT THE INCOME AND/OR EXPENSES  OF  EITHER  PARTY  BE
VERIFIED  WITH  DOCUMENTATION  INCLUDING,  BUT  NOT LIMITED TO, PAST AND
PRESENT INCOME TAX RETURNS, EMPLOYER STATEMENTS, PAY  STUBS,  CORPORATE,
BUSINESS,  OR  PARTNERSHIP BOOKS AND RECORDS, CORPORATE AND BUSINESS TAX
RETURNS, AND RECEIPTS FOR EXPENSES OR SUCH OTHER MEANS  OF  VERIFICATION
AS  THE COURT DETERMINES APPROPRIATE. NOTHING IN THIS SUBPARAGRAPH SHALL
AFFECT ANY PARTY'S RIGHT TO PURSUE DISCOVERY PURSUANT TO THIS CHAPTER OR
THE CIVIL PRACTICE LAW AND RULES.
  (11) WHEN  A  PARTY  HAS  DEFAULTED  AND/OR  THE  COURT  IS  OTHERWISE
PRESENTED  WITH  INSUFFICIENT  EVIDENCE  TO  DETERMINE GROSS INCOME, THE
COURT SHALL ORDER THE POST-MARITAL  INCOME  OBLIGATION  BASED  UPON  THE
STANDARD  OF  LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE DIVORCE
ACTION.  SUCH ORDER MAY BE RETROACTIVELY MODIFIED UPWARD WITHOUT A SHOW-
ING OF CHANGE IN CIRCUMSTANCES.
  (12) POST-MARITAL INCOME MAY BE MODIFIED PURSUANT TO  PARAGRAPH  B  OF
SUBDIVISION NINE OF THIS PART.
  (13) IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAIN-
TENANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THIS SUBPARA-
GRAPH,  BROUGHT PURSUANT TO THIS ARTICLE, THE POST-MARITAL INCOME STAND-
ARDS SET FORTH IN THIS  PARAGRAPH  SHALL  NOT  CONSTITUTE  A  CHANGE  OF
CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH ORDER.
  S  3. The domestic relations law is amended by adding a new article 14
to read as follows:
                                ARTICLE 14
                     RIGHT TO ASSISTANCE OF COUNSEL
SECTION 260. LEGISLATIVE FINDINGS AND PURPOSE.
        261. RIGHT TO ASSISTANCE OF COUNSEL.
  S 260. LEGISLATIVE FINDINGS AND PURPOSE. THE PURPOSE OF  THIS  ARTICLE
IS  TO IDENTIFY THOSE CASES IN WHICH A PARTY WHO CANNOT AFFORD AN ATTOR-
NEY HAS A  RIGHT  TO  COURT-ORDERED  LEGAL  REPRESENTATION.  MATRIMONIAL
ACTIONS ARE OFTEN COMPLEX. LITIGATION DETERMINES THE DIVISION OF MARITAL
PROPERTY,  THE  CUSTODY  OF  CHILDREN,  AND THE RESOLUTION OF THE FUTURE
FINANCIAL ARRANGEMENTS BETWEEN THE PARTIES AND SUPPORT OF THE  CHILDREN,
ALL  ISSUES  THAT MAY HAVE A PROFOUND IMPACT ON THE LIVES AND WELL-BEING
OF FAMILY MEMBERS FOR YEARS TO COME.

A. 7269                             7

  THE INTERESTS OF FAIRNESS TO THE PARTIES AND OF  JUDICIAL  ECONOMY  IN
MATRIMONIAL  ACTIONS,  WHICH  SO  OFTEN  INVOLVE IMPORTANT RIGHTS OF THE
PARTIES AND THEIR CHILDREN, FORM THE BASIS FOR A RIGHT TO THE ASSISTANCE
OF COUNSEL.  LITIGANTS  WITHOUT  COUNSEL  UNWITTINGLY  COMPROMISE  THEIR
RIGHTS  AND  INTERESTS,  RESULTING  IN  LASTING DAMAGE TO THEMSELVES AND
THEIR CHILDREN. ALSO, CASES IN WHICH  PARTIES  ARE  NOT  REPRESENTED  BY
COUNSEL  REQUIRE  ADDITIONAL  JUDICIAL  RESOURCES  TO MAKE SURE THAT ONE
PARTY DOES NOT TAKE ADVANTAGE OF THE OTHER PARTY'S LACK  OF  FAMILIARITY
WITH  LAW  AND LEGAL PROCEEDINGS. ACROSS THE STATE, LEGAL REPRESENTATION
IS VIEWED AS A TOP PRIORITY IN ALLOWING PEOPLE MEANINGFUL ACCESS TO  THE
COURT SYSTEM IN MATRIMONIAL ACTIONS.
  JUDGES  SHALL  NOT  REQUIRE THE DEPLETION OF THE MARITAL ESTATE TO PAY
FOR THE PARTIES' PRIVATE COUNSEL BEFORE THEY ORDER FREE  COUNSEL  FOR  A
PARTY  WHO  CANNOT  REASONABLY  AFFORD TO PAY COUNSEL FEES. THE RIGHT TO
ASSISTANCE OF COUNSEL SHALL BE IMPLEMENTED BY JUDGES IN A WAY THAT  DOES
NOT IMPOVERISH THE PARTIES, ESPECIALLY WHERE THE MARITAL ESTATE SHALL BE
NEEDED IN THE FUTURE TO SUPPORT CHILDREN OF THE MARRIAGE OR AGING, DISA-
BLED OR OTHERWISE VULNERABLE PARTIES.
  S  261.  RIGHT TO ASSISTANCE OF COUNSEL. 1. THE JUDGE IN A MATRIMONIAL
ACTION SHALL ORDER  COURT-APPOINTED  COUNSEL  FOR  A  PARTY  WHO  CANNOT
REASONABLY  AFFORD TO OBTAIN COUNSEL WHERE THE OTHER PARTY TO THE ACTION
HAS OBTAINED OR CAN REASONABLY AFFORD TO OBTAIN COUNSEL.
  2. THE JUDGE IN A MATRIMONIAL ACTION MAY ORDER COURT-APPOINTED COUNSEL
FOR BOTH PARTIES TO THE ACTION WHERE NEITHER PARTY HAS OBTAINED  COUNSEL
AND  NEITHER PARTY CAN REASONABLY AFFORD TO OBTAIN COUNSEL OR FOR EITHER
PARTY WHEN JUSTICE REQUIRES.
  S 4.  Section 200 of the domestic relations law, as amended by chapter
254 of the laws of 1966, subdivision 3 as amended by chapter 300 of  the
laws  of  1981,  subdivision  4 as amended by chapter 264 of the laws of
2003 and subdivision 5 as amended by chapter 702 of the laws of 1968, is
amended to read as follows:
  S 200. Action for separation. (A) An action may  be  maintained  by  a
husband  or  wife  against  the other party to the marriage to procure a
judgment separating the parties [from bed and board,] forever[,] or  for
a limited time[,] for any of the following [causes] GROUNDS:
  1.  The  cruel and inhuman treatment of the plaintiff by the defendant
such that the conduct of the defendant  so  endangers  the  physical  or
mental  well being of the plaintiff as renders it unsafe or improper for
the plaintiff to cohabit with the defendant.
  2. The abandonment of the plaintiff by the defendant.
  3. The neglect or refusal of the defendant-spouse to provide  for  the
support of the plaintiff-spouse where the defendant-spouse is chargeable
with  such  support under the provisions of FORMER section thirty-two of
this chapter or of section four hundred twelve of the family court act.
  4. The commission of an act of adultery by the defendant; except where
such offense is committed by the procurement or with the  connivance  of
the  plaintiff  or  where there is voluntary cohabitation of the parties
with the knowledge of the offense or  where  action  was  not  commenced
within  five  years  after the discovery by the plaintiff of the offense
charged or where the plaintiff has also been guilty  of  adultery  under
such circumstances that the defendant would have been entitled, if inno-
cent,  to  a  divorce,  provided  that adultery for the purposes of this
subdivision is hereby defined as the commission  of  an  act  of  sexual
intercourse,  oral  sexual  conduct  or anal sexual conduct, voluntarily
performed by the defendant, with a person other than the plaintiff after
the marriage of plaintiff and defendant. Oral sexual  conduct  and  anal

A. 7269                             8

sexual  conduct  include,  but  are  not  limited  to, sexual conduct as
defined in subdivision two of section 130.00 and  subdivision  three  of
section 130.20 of the penal law.
  5. The confinement of the defendant in prison for a period of three or
more consecutive years after the marriage of plaintiff and defendant.
  (B) UNLESS THE PARTIES SHALL AGREE OTHERWISE OR UPON GOOD CAUSE SHOWN,
THE  COURT  SHALL  NOT ENTER A JUDGMENT OF SEPARATION UNDER THIS SECTION
UNTIL THE PARTIES HAVE AGREED IN WRITING OR ON THE RECORD,  OR  FINDINGS
HAVE  BEEN MADE ON THE RECORD, RESOLVING CUSTODY AND THE ECONOMIC ISSUES
OF THE PARTIES' MARRIAGE, INCLUDING, BUT NOT LIMITED TO,  THE  EQUITABLE
DISTRIBUTION  OF MARITAL PROPERTY, THE PAYMENT OR WAIVER OF POST-MARITAL
INCOME, CHILD SUPPORT, AND COUNSEL FEES AND EXPENSES, AND THE RESOLUTION
OF ALL SUCH ISSUES HAS BEEN INCORPORATED IN THE FINAL JUDGMENT OF  SEPA-
RATION.
  S  5.  Paragraph (b) of subdivision 1-b of section 240 of the domestic
relations law is amended by adding a new subparagraph  5-a  to  read  as
follows:
  (5-A)  "INCOME  CAP" SHALL MEAN COMBINED INCOME OF THE PARTIES OF FIVE
HUNDRED THOUSAND DOLLARS ANNUALLY, INCREASED OR DECREASED ON MARCH FIRST
OF EACH YEAR BY ANY CHANGE IN THE COST OF LIVING AS DEFINED IN THE ANNU-
AL CONSUMER PRICE INDEX-ALL URBAN CONSUMERS,  NEW  YORK,  NEW  YORK-NOR-
THEASTERN  NEW JERSEY, AS PUBLISHED BY THE BUREAU OF LABOR STATISTICS OF
THE UNITED STATES DEPARTMENT OF LABOR.
  S 6. Subparagraphs 2 and 3 of paragraph  (c)  of  subdivision  1-b  of
section  240  of  the domestic relations law, as added by chapter 567 of
the laws of 1989, are amended to read as follows:
  (2) The court shall  multiply  the  combined  parental  income  up  to
[eighty  thousand  dollars]  THE  INCOME  CAP  by  the appropriate child
support percentage and such amount shall be prorated in the same propor-
tion as each parent's income is to the combined parental income.
  (3) Where the combined parental income exceeds the [dollar amount  set
forth in subparagraph two of this paragraph] INCOME CAP, the court shall
determine  the  amount  of  child support for the amount of the combined
parental income in excess of [such dollar amount] THE INCOME CAP through
consideration of the factors set forth in paragraph (f) of this subdivi-
sion and/or the child support percentage.
  S 7. Subparagraph 5 of paragraph (b), paragraph (d), subparagraph 8 of
paragraph (f) and paragraph (g) of subdivision 1-b of section 240 of the
domestic relations law, as added by chapter 567 of the laws of 1989  and
paragraph  (g) as amended by chapter 41 of the laws of 1992, are amended
to read as follows:
  (5) "Income" shall mean, but shall not be limited to, the sum  of  the
amounts determined by the application of clauses (i), (ii), (iii), (iv),
(v)  [and],  (vi)  AND  (VII) of this subparagraph reduced by the amount
determined by the application of clause [(vii)] (VIII) of this  subpara-
graph:
  (i)  gross (total) income as should have been or should be reported in
the most recent federal  income  tax  return.  If  an  individual  files
his/her  federal  income  tax return as a married person filing jointly,
such person shall be required to prepare a form, sworn to under  penalty
of law, disclosing his/her gross income individually;
  (ii)  to the extent not already included in gross income in clause (i)
of this subparagraph, investment income  reduced  by  sums  expended  in
connection with such investment;

A. 7269                             9

  (iii)  TO  THE  EXTENT NOT ALREADY INCLUDED IN GROSS INCOME IN CLAUSES
(I) AND (II) OF THIS SUBPARAGRAPH, POST-MARITAL INCOME  AND  MAINTENANCE
AWARDS;
  (IV) to the extent not already included in gross income in clauses (i)
[and],  (ii)  AND  (III)  of  this subparagraph, the amount of income or
compensation voluntarily deferred and income received, if any, from  the
following sources:
  (A) workers' compensation,
  (B) disability benefits,
  (C) unemployment insurance benefits,
  (D) social security benefits,
  (E) veterans benefits,
  (F) pensions and retirement benefits,
  (G) fellowships and stipends, and
  (H) annuity payments;
  [(iv)]  (V) at the discretion of the court, the court may attribute or
impute income from, such other resources as  may  be  available  to  the
parent, including, but not limited to:
  (A) non-income producing assets,
  (B) meals, lodging, memberships, automobiles or other perquisites that
are  provided  as part of compensation for employment to the extent that
such perquisites constitute expenditures  for  personal  use,  or  which
expenditures directly or [indirecly] INDIRECTLY confer personal economic
benefits,
  (C)  fringe  benefits provided as part of compensation for employment,
and
  (D) money, goods, or services provided by relatives and friends;
  [(v)] (VI) an amount imputed as income based upon the parent's  former
resources  or  income, if the court determines that a parent has reduced
resources or income in order to reduce or avoid the parent's  obligation
for child support;
  [(vi)]  (VII)  to  the  extent not already included in gross income in
clauses (i) [and], (ii) AND (III) of this  subparagraph,  the  following
self-employment deductions attributable to self-employment carried on by
the taxpayer:
  (A) any depreciation deduction greater than depreciation calculated on
a  straight-line basis for the purpose of determining business income or
investment credits, and
  (B) entertainment and travel allowances deducted from business  income
to the extent said allowances reduce personal expenditures;
  [(vii)]  (VIII)  the  following shall be deducted from income prior to
applying the provisions of paragraph (c) of this subdivision:
  (A) unreimbursed employee business expenses except to the extent  said
expenses reduce personal expenditures,
  (B)  alimony  or  maintenance actually paid to a spouse not a party to
the instant action pursuant to court order or validly  executed  written
agreement,
  (C)  alimony  or  maintenance  actually paid or to be paid to a spouse
that is a party to the instant action  pursuant  to  an  existing  court
order  or contained in the order to be entered by the court, or pursuant
to a validly executed written agreement, provided the order or agreement
provides for a specific adjustment, in accordance with this subdivision,
in the amount of child support payable upon the termination  of  alimony
or maintenance to such spouse,

A. 7269                            10

  (D)  child  support  actually  paid pursuant to court order or written
agreement on behalf of any child for whom the parent has a legal duty of
support and who is not subject to the instant action,
  (E) public assistance,
  (F) supplemental security income,
  (G)  New  York city or Yonkers income or earnings taxes actually paid,
and
  (H) federal insurance contributions act (FICA) taxes actually paid.
  (d) Notwithstanding the provisions of paragraph (c) of  this  subdivi-
sion,  where  the  annual  amount  of the basic child support obligation
would reduce the non-custodial parent's income below the poverty  income
guidelines amount for a single person as reported by the federal depart-
ment  of health and human services, THERE SHALL BE A REBUTTABLE PRESUMP-
TION THAT the  basic  child  support  obligation  shall  be  twenty-five
dollars  per  month or the difference between the non-custodial parent's
income and the self-support reserve, whichever is greater. Notwithstand-
ing the provisions of paragraph (c) of this subdivision, where the annu-
al amount of the basic child support obligation would  reduce  the  non-
custodial  parent's  income below the self-support reserve but not below
the poverty income guidelines amount for a single person as reported  by
the  federal  department  of  health and human services, the basic child
support obligation shall be fifty dollars per month  or  the  difference
between  the non-custodial parent's income and the self-support reserve,
whichever is greater.
  (8) The needs of the children of the non-custodial parent for whom the
non-custodial parent is providing support who are  not  subject  to  the
instant  action  and  whose  support  has  not been deducted from income
pursuant to subclause (D) of clause [(vii)] (VIII) of subparagraph  five
of paragraph (b) of this subdivision, and the financial resources of any
person  obligated to support such children, provided, however, that this
factor may apply only if the resources available to support  such  chil-
dren  are  less than the resources available to support the children who
are subject to the instant action;
  (g) Where the court finds that the  non-custodial  parent's  pro  rata
share  of the basic child support obligation is unjust or inappropriate,
the court shall order the non-custodial parent to  pay  such  amount  of
child  support  as  the  court finds just and appropriate, and the court
shall set forth, in a written order,  the  factors  it  considered;  the
amount  of  each party's pro rata share of the basic child support obli-
gation; and the reasons that the court did not  order  the  basic  child
support  obligation.    Such  written  order may not be waived by either
party or counsel;  provided,  however,  and  notwithstanding  any  other
provision  of  law,  the  court  shall  not  find that the non-custodial
parent's pro rata share of such obligation is unjust or inappropriate on
the basis that such share exceeds the portion  of  a  public  assistance
grant  which  is  attributable  to  a child or children. [In no instance
shall the court  order  child  support  below  twenty-five  dollars  per
month.] Where the non-custodial parent's income is less than or equal to
the  poverty income guidelines amount for a single person as reported by
the federal department  of  health  and  human  services,  unpaid  child
support arrears in excess of five hundred dollars shall not accrue.
  S  8. Section 210 of the domestic relations law, as amended by chapter
641 of the laws of 1985, is amended to read as follows:
  S 210. Limitations on actions for divorce and  separation.  No  action
for divorce or separation may be maintained on a ground which arose more

A. 7269                            11

than  five  years before the date of the commencement of that action for
divorce or separation except where:
  (a)  In  an  action for divorce, the grounds therefor are one of those
specified in [subdivision (2), (4), (5) or  (6)]  PARAGRAPH  TWO,  FOUR,
FIVE  OR  SIX  OF SUBDIVISION (A) of section one hundred seventy of this
chapter, or
  (b) In an action for separation, the grounds therefor are one of those
specified in [subdivision 2 or 4] PARAGRAPH TWO OR FOUR  of  SUBDIVISION
(A) OF section two hundred of this chapter.
  S  9. Subdivision a of section 170-a of the domestic relations law, as
added by chapter 415 of the laws of 1975, is amended to read as follows:
  a. A spouse against whom a decree of divorce has been  obtained  under
the provisions of [subdivision] PARAGRAPH five or six of SUBDIVISION (A)
OF  section  one  hundred  seventy  of this [chapter] ARTICLE, where the
decree, judgment or agreement of separation was obtained or entered into
prior to January twenty-first, nineteen hundred seventy,  may  institute
an action in which there shall be recoverable, in addition to any rights
under  this  or any other provisions of law, an amount equivalent to the
value of any economic and  property  rights  of  which  the  spouse  was
deprived  by  virtue  of  such  decree, except where the grounds for the
separation judgment would have excluded recovery of economic and proper-
ty rights.
  S 10. Subdivision 4 of section 253 of the domestic relations  law,  as
amended  by  chapter  945  of  the  laws  of 1984, is amended to read as
follows:
  4. In any action for divorce based on [subdivisions]  PARAGRAPHS  five
and  six of SUBDIVISION (A) OF section one hundred seventy of this chap-
ter in which the defendant enters a  general  appearance  and  does  not
contest  the requested relief, no final judgment of annulment or divorce
shall be entered unless both parties shall have filed and  served  sworn
statements: (i) that he or she has, to the best of his or her knowledge,
taken all steps solely within his or her power to remove all barriers to
the other party's remarriage following the annulment or divorce; or (ii)
that  the  other  party  has  waived in writing the requirements of this
subdivision.
  S 11.  Section 170 of the domestic relations law, as added by  chapter
254  of the laws of 1966, subdivisions 2 and 5 as amended by chapter 835
of the laws of 1970, subdivision 3 as amended by chapter 700 of the laws
of 1968, subdivision 4 as amended by chapter 264 of the laws of 2003 and
subdivision 6 as amended by chapter 801 of the laws of 1971, is  amended
to read as follows:
  S  170.  Action  for divorce.   (A) An action for divorce may be main-
tained by a husband or wife to procure a judgment divorcing the  parties
and dissolving the marriage on any of the following grounds:
  (1)  The cruel and inhuman treatment of the plaintiff by the defendant
such that the conduct of the defendant  so  endangers  the  physical  or
mental  well being of the plaintiff as renders it unsafe or improper for
the plaintiff to cohabit with the defendant.
  (2) The abandonment of the plaintiff by the defendant for a period  of
one or more years.
  (3)  The  confinement of the defendant in prison for a period of three
or more consecutive years after the marriage of plaintiff and defendant.
  (4) The commission of an act of adultery, provided that  adultery  for
the  purposes of [articles ten,] THIS ARTICLE AND ARTICLES eleven[,] and
eleven-A of this chapter, is hereby defined as the commission of an  act
of  sexual  intercourse,  oral  sexual  conduct  or anal sexual conduct,

A. 7269                            12

voluntarily performed by the defendant, with a  person  other  than  the
plaintiff  after  the  marriage  of plaintiff and defendant. Oral sexual
conduct and anal sexual conduct include, but are not limited to,  sexual
conduct  as defined in subdivision two of section 130.00 and subdivision
three of section 130.20 of the penal law.
  (5) The husband and wife have lived apart  pursuant  to  a  decree  or
judgment  of  separation  for  a  period  of one or more years after the
granting of such decree or judgment, and  satisfactory  proof  has  been
submitted  by  the  plaintiff that he or she has substantially performed
all the terms and conditions of such decree or judgment.
  (6) The husband and wife have lived separate and apart pursuant  to  a
written  agreement  of separation, subscribed by the parties thereto and
acknowledged or proved in the form required to  entitle  a  deed  to  be
recorded,  for a period of one or more years after the execution of such
agreement and satisfactory proof has been  submitted  by  the  plaintiff
that  he or she has substantially performed all the terms and conditions
of such agreement. Such agreement shall be filed in the  office  of  the
clerk of the county wherein either party resides. In lieu of filing such
agreement,  either party to such agreement may file a memorandum of such
agreement, which memorandum shall be similarly subscribed  and  acknowl-
edged or proved as was the agreement of separation and shall contain the
following  information:  (a)  the  names  and  addresses  of each of the
parties, (b) the date of marriage of the parties, (c) the  date  of  the
agreement  of  separation  and  (d)  the  date  of this subscription and
acknowledgment or proof of such agreement of separation.
  (B) UNLESS THE PARTIES SHALL AGREE OTHERWISE OR UPON GOOD CAUSE SHOWN,
THE COURT SHALL NOT ENTER A JUDGMENT OF DIVORCE UNDER THIS SECTION UNTIL
THE PARTIES HAVE AGREED IN WRITING OR ON THE RECORD,  OR  FINDINGS  HAVE
BEEN  MADE  ON  THE RECORD, RESOLVING CUSTODY AND THE ECONOMIC ISSUES OF
THE PARTIES' MARRIAGE, INCLUDING, BUT  NOT  LIMITED  TO,  THE  EQUITABLE
DISTRIBUTION  OF MARITAL PROPERTY, THE PAYMENT OR WAIVER OF POST-MARITAL
INCOME, CHILD SUPPORT,  AND  COUNSEL  FEES  AND  EXPENSES  AS  OTHERWISE
DEFINED  IN THIS ARTICLE, AND THE RESOLUTION OF ALL SUCH ISSUES HAS BEEN
INCORPORATED IN THE FINAL JUDGMENT OF DIVORCE.
  S 12. Paragraph (b) of subdivision 1 of  section  413  of  the  family
court  act  is  amended  by  adding  a  new  subparagraph 5-a to read as
follows:
  (5-A) "INCOME CAP" SHALL MEAN COMBINED INCOME OF THE PARTIES  OF  FIVE
HUNDRED THOUSAND DOLLARS ANNUALLY, INCREASED OR DECREASED ON MARCH FIRST
OF EACH YEAR BY ANY CHANGE IN THE COST OF LIVING AS DEFINED IN THE ANNU-
AL  CONSUMER  PRICE  INDEX-ALL  URBAN CONSUMERS, NEW YORK, NEW YORK-NOR-
THEASTERN NEW JERSEY, AS PUBLISHED BY THE BUREAU OF LABOR STATISTICS  OF
THE UNITED STATES DEPARTMENT OF LABOR.
  S  13.  Subparagraphs  2  and  3  of paragraph (c) of subdivision 1 of
section 413 of the family court act, as amended by chapter  567  of  the
laws of 1989, are amended to read as follows:
  (2)  The  court  shall  multiply  the  combined  parental income up to
[eighty thousand dollars]  THE  INCOME  CAP  by  the  appropriate  child
support percentage and such amount shall be prorated in the same propor-
tion as each parent's income is to the combined parental income.
  (3)  Where the combined parental income exceeds the [dollar amount set
forth in subparagraph two of this paragraph] INCOME CAP, the court shall
determine the amount of child support for the  amount  of  the  combined
parental income in excess of [such dollar amount] THE INCOME CAP through
consideration of the factors set forth in paragraph (f) of this subdivi-
sion and/or the child support percentage.

A. 7269                            13

  S  14.  Subparagraph 5 of paragraph (b), paragraph (d), subparagraph 8
of paragraph (f) and paragraph (g) of subdivision 1 of  section  413  of
the  family court act, as amended by chapter 567 of the laws of 1989 and
paragraph (g) as amended by chapter 41 of the laws of 1992, are  amended
to read as follows:
  (5)  "Income"  shall mean, but shall not be limited to, the sum of the
amounts determined by the application of clauses (i), (ii), (iii), (iv),
(v) [and], (vi), AND (VII) of this subparagraph reduced  by  the  amount
determined  by the application of clause [(vii)] (VIII) of this subpara-
graph:
  (i) gross (total) income as should have been or should be reported  in
the  most  recent  federal  income  tax  return.  If an individual files
his/her federal income tax return as a married  person  filing  jointly,
such  person shall be required to prepare a form, sworn to under penalty
of law, disclosing his/her gross income individually;
  (ii) to the extent not already included in gross income in clause  (i)
of  this  subparagraph,  investment  income  reduced by sums expended in
connection with such investment;
  (iii) TO THE EXTENT NOT ALREADY INCLUDED IN GROSS  INCOME  IN  CLAUSES
(I)  AND  (II) OF THIS SUBPARAGRAPH, POST-MARITAL INCOME AND MAINTENANCE
AWARDS;
  (IV) to the extent not already included in gross income in clauses (i)
[and], (ii), AND (III) of this subparagraph, the  amount  of  income  or
compensation  voluntarily deferred and income received, if any, from the
following sources:
  (A) workers' compensation,
  (B) disability benefits,
  (C) unemployment insurance benefits,
  (D) social security benefits,
  (E) veterans benefits,
  (F) pensions and retirement benefits,
  (G) fellowships and stipends, and
  (H) annuity payments;
  [(iv)] (V) at the discretion of the court, the court may attribute  or
impute  income  from,  such  other  resources as may be available to the
parent, including, but not limited to:
  (A) non-income producing assets,
  (B) meals, lodging, memberships, automobiles or other perquisites that
are provided as part of compensation for employment to the  extent  that
such  perquisites  constitute  expenditures  for  personal use, or which
expenditures directly or [indirecly] INDIRECTLY confer personal economic
benefits,
  (C) fringe benefits provided as part of compensation  for  employment,
and
  (D) money, goods, or services provided by relatives and friends;
  [(v)]  (VI) an amount imputed as income based upon the parent's former
resources or income, if the court determines that a parent  has  reduced
resources  or income in order to reduce or avoid the parent's obligation
for child support;
  [(vi)] (VII) to the extent not already included  in  gross  income  in
clauses  (i)  [and],  (ii) AND (III) of this subparagraph, the following
self-employment deductions attributable to self-employment carried on by
the taxpayer:
  (A) any depreciation deduction greater than depreciation calculated on
a straight-line basis for the purpose of determining business income  or
investment credits, and

A. 7269                            14

  (B)  entertainment and travel allowances deducted from business income
to the extent said allowances reduce personal expenditures;
  [(vii)]  (VIII)  the  following shall be deducted from income prior to
applying the provisions of paragraph (c) of this subdivision:
  (A) unreimbursed employee business expenses except to the extent  said
expenses reduce personal expenditures,
  (B)  alimony  or  maintenance actually paid to a spouse not a party to
the instant action pursuant to court order or validly  executed  written
agreement,
  (C)  alimony  or  maintenance  actually paid or to be paid to a spouse
that is a party to the instant action  pursuant  to  an  existing  court
order  or contained in the order to be entered by the court, or pursuant
to a validly executed written agreement, provided the order or agreement
provides for a specific adjustment, in accordance with this subdivision,
in the amount of child support payable upon the termination  of  alimony
or maintenance to such spouse,
  (D)  child  support  actually  paid pursuant to court order or written
agreement on behalf of any child for whom the parent has a legal duty of
support and who is not subject to the instant action,
  (E) public assistance,
  (F) supplemental security income,
  (G) New York city or Yonkers income or earnings taxes  actually  paid,
and
  (H) federal insurance contributions act (FICA) taxes actually paid.
  (d)  Notwithstanding  the provisions of paragraph (c) of this subdivi-
sion, where the annual amount of  the  basic  child  support  obligation
would  reduce the non-custodial parent's income below the poverty income
guidelines amount for a single person as reported by the federal depart-
ment of health and human services, THERE  IS  A  REBUTTABLE  PRESUMPTION
THAT the basic child support obligation shall be twenty-five dollars per
month  or  the  difference between the non-custodial parent's income and
the self-support reserve,  whichever  is  greater.  Notwithstanding  the
provisions of paragraph (c) of this subdivision, where the annual amount
of  the  basic  child  support obligation would reduce the non-custodial
parent's income below the self-support reserve but not below the poverty
income guidelines amount for a single person as reported by the  federal
department  of  health and human services, the basic child support obli-
gation shall be fifty dollars per month or the  difference  between  the
non-custodial parent's income and the self-support reserve, whichever is
greater.
  (8) The needs of the children of the non-custodial parent for whom the
non-custodial  parent  is  providing  support who are not subject to the
instant action and whose support  has  not  been  deducted  from  income
pursuant  to subclause (D) of clause [(vii)] (VIII) of subparagraph five
of paragraph (b) of this subdivision, and the financial resources of any
person obligated to support such children, provided, however, that  this
factor  may  apply only if the resources available to support such chil-
dren are less than the resources available to support the  children  who
are subject to the instant action;
  (g)  Where  the  court  finds that the non-custodial parent's pro rata
share of the basic child support obligation is unjust or  inappropriate,
the  court  shall  order  the non-custodial parent to pay such amount of
child support as the court finds just and  appropriate,  and  the  court
shall  set  forth,  in  a  written order, the factors it considered; the
amount of each party's pro rata share of the basic child  support  obli-
gation;  and  the  reasons  that the court did not order the basic child

A. 7269                            15

support obligation.   Such written order may not  be  waived  by  either
party  or  counsel;  provided  however,  and  notwithstanding  any other
provision of law, including but not  limited  to  section  four  hundred
fifteen  of  this  act,  the court shall not find that the non-custodial
parent's pro rata share of such obligation is unjust or inappropriate on
the basis that such share exceeds the portion  of  a  public  assistance
grant  which  is  attributable  to  a child or children. [In no instance
shall the court  order  child  support  below  twenty-five  dollars  per
month.] Where the non-custodial parent's income is less than or equal to
the  poverty income guidelines amount for a single person as reported by
the federal department  of  health  and  human  services,  unpaid  child
support arrears in excess of five hundred dollars shall not accrue.
  S  15.  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.