Senate Bill S5667B

2009-2010 Legislative Session

Enacts the "Divorce Reform Act of 2010"

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 21, 2010	print number 5667b
May 21, 2010	amend and recommit to judiciary
Jan 14, 2010	print number 5667a
Jan 14, 2010	amend (t) and recommit to judiciary
Jan 06, 2010	referred to judiciary
May 27, 2009	referred to judiciary

Bill Amendments

2009-S5667 - Details

Current Committee:: Senate Judiciary
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§236, 170, 237 & 238, Dom Rel L; amd §438, Fam Ct Act

2009-S5667 - Summary

Enacts "The Divorce Reform Act of 2010"; provides that maintenance may be required to be paid either permanently or for a fixed period of time; provides that the failure to state in an agreement between the parties or in a court order that the remarriage of the recipient of maintenance shall cause the termination of such maintenance, shall not bar the termination thereof; makes the post-divorce standards of living of the parties and the loss of health insurance benefits factors in determining the disposition of property

2009-S5667 - Sponsor Memo

                                 BILL NUMBER:  S5667

 TITLE OF BILL :
An act to amend the domestic relations law and the family court act,
in relation to enacting the "Divorce Reform Act of 2009"


 PURPOSE OF BILL :
This bill adds irreconcilable differences as a ground for divorce. The
bill also provides for loss of health insurance and post divorce
standard of living as additional factors to be considered in the
court's determination of equitable distribution; the loss of health
insurance as an additional factor to be considered in the court's
determination of maintenance; permanent maintenance if a party is
unable to maintain the standard of living established during the
marriage due to age, health or other related factors; and a rebuttable
presumption of attorney's fees to the non-monied spouse in divorce
proceedings.

 SUMMARY OF PROVISIONS OF BILL :
Paragraph a of subdivision 1 of part B of section 236 of the domestic
relations law, is amended to provide that maintenance can be paid at
fixed intervals either permanently or for a fixed period of time.
This provision also provides that the failure to state in an agreement
between the parties, or a court order, that the recipient's remarriage
shall terminate an award of maintenance shall not prevent the

termination of such maintenance.

Subparagraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, of paragraph d of
subdivision 5 of part B of section 236 of the domestic relations law,
are renumbered 6, 7, 8, 9, 10, 11, 12, 13, and 14, and a new
subparagraph 5 is added to provide that the loss of health insurance
benefits shall be a factor to be considered by the court in an award
of property distribution.

The opening paragraph of paragraph a of subdivision 6 of part B of
section 236 of the domestic relations law is amended to provide that
the court shall award permanent maintenance, subject to modification,
if a party seeking maintenance is unable to maintain the marital
standard of living due to a number of factors, including the duration
of the marriage, age, health, reduced or lost lifetime earning
capacity, loss of health insurance benefits, or the needs of minor or
dependent children.

The opening paragraph of paragraph c of subdivision 6 of part B of
section 236 of the domestic relations law is amended to provide that
failure to state in an agreement between the parties, or a court
order, that the recipient's remarriage shall terminate .an award of
maintenance shall not prevent the termination of such maintenance.

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 provide that the loss of health
insurance benefits shall be a factor to be considered by the judge in
an award of maintenance.

Section 170 of the domestic relations law is amended by adding a new
subdivision 7 which provides for the ground of irreconcilable
differences, which is established by showing that there is no
reasonable prospect of reconciliation.

After 12 months of living separate and apart there shall be a
presumption of no prospect of reconciliation. It further provides that
in the absence of a valid separation agreement the court shall not
grant a judgment of divorce until all 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 incorporated into the
final divorce decree.

Sections 237 and 238 of the Domestic Relations Law and section 438 of
the Family Court Act are amended to provide for a presumption of
counsel fees to a non-monied spouse.

 JUSTIFICATION :
New York State is the only state that does not have some form of no-
fault divorce. New York is a fault state and a divorce can only be
granted if a plaintiff alleges and proves one of the five grounds
contained in Domestic Relations Law section 170. In the absence of a
separation agreement, which both parties must agree to, a plaintiff
can only get a divorce in New York if they allege and prove wrongdoing
by their spouse. If fault can't be proven, a party will remain married
notwithstanding the breakdown of the marriage. This bill adds
irreconcilable differences as a no-fault ground for divorce. A party
can simply allege that irreconcilable differences have arisen and
there is no prospect of reconciliation. If a party pleads and proves
these two elements a divorce would be granted. If a couple lives
separate and apart for a period of one year, there is a presumption
that there is no prospect of reconciliation. This ground will enable a
party to obtain a divorce without proving fault, instead, the party
will establish that the marriage is over and there is no prospect for
reconciliation.

The Assembly Judiciary Committee held roundtable discussions on the
issue of no-fault divorce in 2005 and 2006. Representatives of the bar
with extensive matrimonial expertise participated in the roundtables.
The inability of individuals to obtain a divorce and the problem of
litigants committing perjury to obtain a divorce were some of the
problems discussed. Although there was no consensus on a no-fault
divorce proposal, a consensus was reached that our divorce laws need
reform. The present bill does not eliminate our fault grounds; rather
it adds irreconcilable differences as a ground and thereby gives an
individual an option to obtain a divorce without alleging fault. A
party would only have to allege irreconcilable differences such that
there is no reasonable prospect of reconciliation.

Domestic violence groups, as well as other advocacy organizations,
have made it clear that no-fault divorce legislation must be
accompanied by reforms in the areas of equitable distribution,
maintenance, and the awarding of attorneys' fees. If irreconcilable
differences is going to be a ground for divorce, then it is essential
there be a level playing field in divorce proceedings. To that end,
this bill establishes a rebuttable presumption of attorneys' fees to
the non-monied spouse. This will ensure that both parties are
adequately represented in a divorce proceeding regardless of the
grounds. This safeguard is necessary to mitigate any ramifications as
a result of establishing irreconcilable differences as a divorce
ground. Similarly, the bill adds the loss of health insurance benefits
as a factor to be considered in determining maintenance and property
distribution awards.  Also, the bill provides for an award of
permanent maintenance if a party is not able to sustain their same
standard of living after the divorce as a result of age, health,
reduced or lost lifetime earning capacity, loss of health insurance
benefits, or the needs of minor or dependent children, where the
amount of the order is sufficient to eliminate the disparity in the
post-divorce standard of living of the parties. These changes enact a
positive reform of our divorce laws.

 LEGISLATIVE HISTORY :
2007-08: A.3027-A. Judiciary Committee
2006:    A.10440-A Judiciary Committee

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
None.

 EFFECTIVE DATE :
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.

2009-S5667 - Bill Text download pdf

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

                                  5667

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              May 27, 2009
                               ___________

Introduced  by  Sen.  OPPENHEIMER -- read twice and ordered printed, and
  when printed to be committed 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"

  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;
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01545-05-9

S. 5667                             2

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:
   (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

S. 5667                             3

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
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,

S. 5667                             4

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
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-

S. 5667                             5

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-
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

S. 5667                             6

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
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

S. 5667                             7

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.

2009-S5667A - Details

Current Committee:: Senate Judiciary
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§236, 170, 237 & 238, Dom Rel L; amd §438, Fam Ct Act

2009-S5667A - Summary

2009-S5667A - Sponsor Memo

                                 BILL NUMBER:  S5667A

 TITLE OF BILL :  An act to amend the domestic relations law and the
family court act, in relation to enacting the "Divorce Reform Act of
2010"

 PURPOSE OF BILL :  This bill adds irreconcilable differences as a
ground for divorce. The bill also provides for loss of health
insurance and post divorce standard of living as additional factors to
be considered in the court's determination of equitable distribution;
permanent maintenance if a party is unable to maintain the standard of
living established during the marriage due to age, health or other
related factors; and a rebuttable presumption of attorney's fees to
the non-monied spouse in divorce proceedings.

 SUMMARY OF PROVISIONS : OF BILL:  Paragraph a of subdivision 1 of
part B of section 236 of the domestic relations law, is amended to
provide that maintenance can be paid at fixed intervals either
permanently or for a fixed period of time. This provision also
provides that the failure to state in an agreement between the
parties, or a court order, that the recipient's remarriage shall
terminate an award of maintenance shall not prevent the termination of
such maintenance.

The opening paragraph of paragraph a of subdivision 6 of part B of
section 236 of the domestic relations law is amended to provide that

the court shall award permanent maintenance, subject to modification,
if a party seeking maintenance is unable to maintain the marital
standard of living due to a number of factors, including the duration
of the marriage, age, health, reduced or lost lifetime earning
capacity, loss of health insurance benefits, or the needs of minor or
dependent children.

The opening paragraph of paragraph c of subdivision 6 of part B of
section 236 of the domestic relations law is amended to provide that
failure to state in an agreement between the parties, or a court
order, that the recipient's remarriage shall terminate an award of
maintenance shall not prevent the termination of such maintenance.

Section 170 of the domestic relations law is amended by adding a new
subdivision 7 which provides for the ground of irreconcilable
differences, which is established by showing that there is no
reasonable prospect of reconciliation.

After 12 months of living separate and apart there shall be a
presumption of no prospect of reconciliation. It further provides that
in the absence of a valid separation agreement the court shall not
grant a judgment of divorce until all 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 incorporated into the
final divorce decree.

Sections 237 and 238 of the Domestic Relations Law and section 438 of
the Family Court Act are amended to provide for a presumption of
counsel fees to a non-monied spouse.

 JUSTIFICATION :  New York State is the only state that does not have
some form of no-fault divorce. New York is a fault state and a divorce
can only be granted if a plaintiff alleges and proves one of the five
grounds contained in Domestic Relations Law section 170. In the
absence of a separation agreement, which both parties must agree to, a
plaintiff can only get a divorce in New York if they allege and prove
wrongdoing by their spouse. If fault can't be proven, a party will
remain married notwithstanding the breakdown of the marriage. This
bill adds irreconcilable differences as a no-fault ground for divorce.
A party can simply allege that irreconcilable differences have arisen
and there is no prospect of reconciliation. If a party pleads and
proves these two elements a divorce would be granted. If a couple
lives separate and apart for a period of one year, there is a
presumption that there is no prospect of reconciliation. This ground
will enable a party to obtain a divorce without proving fault,
instead, the party will establish that the marriage is over and there
is no prospect for reconciliation.

The Assembly Judiciary Committee held roundtable discussions on the
issue of no-fault divorce in 2005 and 2006. Representatives of the bar
with extensive matrimonial expertise participated in the roundtables.
The inability of individuals to obtain a divorce and the problem of
litigants committing perjury to obtain a divorce were some of the
problems discussed. Although there was no consensus on a no-fault
divorce proposal, a consensus was reached that our divorce laws need
reform. The present bill does not eliminate our fault grounds; rather
it adds irreconcilable differences as a ground and thereby gives an
individual an option to obtain a divorce without alleging fault. A
party would only have to allege irreconcilable differences such that
there is no reasonable prospect of reconciliation.

Domestic violence groups, as well as other advocacy organizations,
have made it clear that no-fault divorce legislation must be
accompanied by reforms in the areas of maintenance, and the awarding
of attorneys' fees. If irreconcilable differences is going to be a
ground for divorce, then it is essential there be a level playing
field in divorce proceedings. To that end, this bill establishes a
rebuttable presumption of attorneys' fees to the non-monied spouse.
This will ensure that both parties are adequately represented in a
divorce proceeding regardless of the grounds. This safeguard is
necessary to mitigate any ramifications as a result of establishing
irreconcilable differences as a divorce ground. Also, the bill
provides for an award of permanent maintenance if a party is not able
to sustain their same standard of living after the divorce as a result
of age, health, reduced or lost lifetime earning capacity, loss of
health insurance benefits, or the needs of minor or dependent
children, where the amount of the order is sufficient to eliminate the
disparity in the post-divorce standard of living of the parties.
These changes enact a positive reform of our divorce laws.

 LEGISLATIVE HISTORY :  2009; A.2580-A/S.5667 -
A.Judiciary/S.Judiciary 2007-08; A.3027- A. Judiciary 2006; A.10440-A-
A. Judiciary

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :  None.

 EFFECTIVE DATE :  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.

2009-S5667A - Bill Text download pdf

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

                                 5667--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              May 27, 2009
                               ___________

Introduced  by  Sen.  OPPENHEIMER -- read twice and ordered printed, and
  when printed to be committed to the Committee on Judiciary  --  recom-
  mitted to the Committee on Judiciary in accordance with Senate Rule 6,
  sec.  8  --  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.
  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.
                                                           LBD01545-09-0

S. 5667--A                          2

  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
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. 5667--A                          3

  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
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. 5667--A                          4

  (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.
  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

S. 5667--A                          5

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
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

S. 5667--A                          6

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
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

S. 5667--A                          7

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.

2009-S5667B (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§236, 170, 237 & 238, Dom Rel L; amd §438, Fam Ct Act

2009-S5667B (ACTIVE) - Summary

2009-S5667B (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5667B

 TITLE OF BILL :
An act to amend the domestic relations law and the family court act,
in relation to enacting the "Divorce Reform Act of 2010"


 PURPOSE OF BILL :
This bill adds irreconcilable differences as a ground for divorce. The
bill also provides for post divorce standard of living as additional
factors to be considered in the court's determination of equitable
distribution; permanent maintenance if a party is unable to maintain
the standard of living established during the marriage due to age,
health or other related factors; and a rebuttable presumption of
attorney's fees to the non-monied spouse in divorce proceedings.

 SUMMARY OF PROVISIONS OF BILL :
Paragraph a of subdivision 1 of part B of section 236 of the domestic
relations law, is amended to provide that maintenance can be paid at
fixed intervals either permanently or for a fixed period of time.
This provision also provides that the failure to state in an agreement
between the parties, or a court order, that the recipient's remarriage
shall terminate an award of maintenance shall not prevent the
termination of such maintenance.

The opening paragraph of paragraph a of subdivision 6 of part B of

section 236 of the domestic relations law is amended to provide that
the court shall award permanent maintenance, subject to modification,
if a party seeking maintenance is unable to maintain the marital
standard of living due to a number of factors, including the duration
of the marriage, age, health, reduced or lost lifetime earning
capacity, loss of health insurance benefits, or the needs of minor or
dependent children.

The opening paragraph of paragraph c of subdivision 6 of part B of
section 236 of the domestic relations law is amended to provide that
failure to state in an agreement between the parties, or a court
order, that the recipient's remarriage shall terminate an award of
maintenance shall not prevent the termination of such maintenance.

Section 170 of the domestic relations law is amended by adding a new
subdivision 7 which provides for the ground of irreconcilable
differences, which is established by showing that there is no
reasonable prospect of reconciliation.

After 12 months of living separate and apart there shall be a
presumption of no prospect of reconciliation. It further provides that
in the absence of a valid separation agreement the court shall not
grant a judgment of divorce until all 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 incorporated into the
final divorce decree.

Sections 237 and 238 of the Domestic Relations Law and section 438 of
the Family Court Act are amended to provide for a presumption of
counsel fees to a non-monied spouse.

 JUSTIFICATION :
New York State is the only state that does not have some form of
no-fault divorce. New York is a fault state and a divorce can only be
granted if a plaintiff alleges and proves one of the five grounds
contained in Domestic Relations Law section 170. In the absence of a
separation agreement, which both parties must agree to, a plaintiff
can only get a divorce in New York if they allege and prove wrongdoing
by their spouse. If fault can't be proven, a party will remain married
notwithstanding the breakdown of the marriage. This bill adds
irreconcilable differences as a no-fault ground for divorce. A party
can simply allege that irreconcilable differences have arisen and
there is no prospect of reconciliation. If a party pleads and proves
these two elements a divorce would be granted. If a couple lives
separate and apart for a period of one year, there is a presumption
that there is no prospect of reconciliation. This ground will enable a
party to obtain a divorce without proving fault, instead, the party
will establish that the marriage is over and there is no prospect for
reconciliation.

The Assembly Judiciary Committee held roundtable discussions on the
issue of no-fault divorce in 2005 and 2006.  Representatives of the
bar with extensive matrimonial expertise participated in the
roundtables.

The inability of individuals to obtain a divorce and the problem of
litigants committing perjury to obtain a divorce were some of the
problems discussed. Although there was no consensus on a no-fault
divorce proposal, a consensus was reached that our divorce laws need
reform. The present bill does not eliminate our fault grounds; rather
it adds irreconcilable differences as a ground and thereby gives an
individual an option to obtain a divorce without alleging fault. A
party would only have to allege irreconcilable differences such that
there is no reasonable prospect of reconciliation.

Domestic violence groups, as well as other advocacy organizations,
have made it clear that no-fault divorce legislation must be
accompanied by reforms in the areas of maintenance, and the awarding
of attorneys' fees. If irreconcilable differences is going to be a
ground for divorce, then it is essential there be a level playing
field in divorce proceedings. To that end, this bill establishes a
rebuttable presumption of attorneys' fees to the non-monied spouse.
This will ensure that both parties are adequately represented in a
divorce proceeding regardless of the grounds. This safeguard is
necessary to mitigate any ramifications as a result of establishing
irreconcilable differences as a divorce ground. Also, the bill
provides for an award of permanent maintenance if a party is not able
to sustain their same standard of living after the divorce as a result
of age, health, reduced or lost lifetime earning capacity, loss of
health insurance benefits, or the needs of minor or dependent
children, where the amount of the order is sufficient to eliminate the
disparity in the post-divorce standard of living of the parties.
These changes enact positive reform of our divorce laws.

 LEGISLATIVE HISTORY :
2009:    A.2580-A/S.5667 - A. Judiciary/S. Judiciary
2007-08: A.3027 - A. Judiciary
2006:    A.10440-A -A. Judiciary

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
None.

 EFFECTIVE DATE :
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.

2009-S5667B (ACTIVE) - Bill Text download pdf

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

                                 5667--B

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              May 27, 2009
                               ___________

Introduced  by  Sen.  OPPENHEIMER -- read twice and ordered printed, and
  when printed to be committed to the Committee on Judiciary  --  recom-
  mitted to the Committee on Judiciary in accordance with Senate Rule 6,
  sec.  8  --  committee  discharged, bill amended, ordered reprinted as
  amended and recommitted to said  committee  --  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.
  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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01545-15-0

S. 5667--B                          2

  (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
THE ECONOMIC ISSUES BETWEEN THE PARTIES, INCLUDING BUT NOT  LIMITED  TO,
THE DISTRIBUTION OF MARITAL PROPERTY, SPOUSAL SUPPORT AND CHILD SUPPORT,

S. 5667--B                          3

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
[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,

S. 5667--B                          4

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
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

S. 5667--B                          5

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
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

S. 5667--B                          6

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.

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Suzi Oppenheimer

Archive: Last Bill Status - In Senate Committee Judiciary Committee

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