S T A T E O F N E W Y O R K
________________________________________________________________________
8390
I N S E N A T E
June 28, 2010
___________
Introduced by Sen. HASSELL-THOMPSON -- read twice and ordered printed,
and when printed to be committed to the Committee on Rules
AN ACT to amend the domestic relations law, in relation to providing for
temporary maintenance awards, and revising the factors for final main-
tenance awards; and directing the law revision commission to study the
economic consequences of divorce and maintenance actions
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Part B of section 236 of the domestic relations law is
amended by adding a new subdivision 5-a to read as follows:
5-A. TEMPORARY MAINTENANCE AWARDS. A. EXCEPT WHERE THE PARTIES HAVE
ENTERED INTO AN AGREEMENT PURSUANT TO SUBDIVISION THREE OF THIS PART
PROVIDING FOR MAINTENANCE, IN ANY MATRIMONIAL ACTION THE COURT SHALL
MAKE ITS AWARD FOR TEMPORARY MAINTENANCE PURSUANT TO THE PROVISIONS OF
THIS SUBDIVISION.
B. FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL
BE USED:
(1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
(2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
(3) "LENGTH OF MARRIAGE" SHALL MEAN THE PERIOD FROM THE DATE OF
MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
(4) "INCOME" SHALL MEAN:
(A) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
THIRTEEN OF THE FAMILY COURT ACT; AND
(B) INCOME FROM INCOME PRODUCING PROPERTY TO BE DISTRIBUTED PURSUANT
TO SUBDIVISION FIVE OF THIS PART.
(5) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING FIVE HUNDRED THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY THIRTY-FIRST, TWO THOUSAND TWELVE AND EVERY TWO YEARS THEREAFTER,
THE PAYOR'S ANNUAL INCOME AMOUNT SHALL INCREASE BY THE PRODUCT OF THE
AVERAGE ANNUAL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL
URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF
LABOR BUREAU OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17166-11-0
S. 8390 2
NEAREST ONE THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL
DETERMINE AND PUBLISH THE INCOME CAP.
(6) "GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE" SHALL MEAN THE SUM
DERIVED BY THE APPLICATION OF PARAGRAPH C OF THIS SUBDIVISION.
(7) "GUIDELINE DURATION" SHALL MEAN THE DURATIONAL PERIOD DETERMINED
BY THE APPLICATION OF PARAGRAPH D OF THIS SUBDIVISION.
(8) "PRESUMPTIVE AWARD" SHALL MEAN THE GUIDELINE AMOUNT OF THE TEMPO-
RARY MAINTENANCE AWARD FOR THE GUIDELINE DURATION PRIOR TO THE COURT'S
APPLICATION OF ANY ADJUSTMENT FACTORS AS PROVIDED IN SUBPARAGRAPH ONE OF
PARAGRAPH E OF THIS SUBDIVISION.
(9) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS
DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
FAMILY COURT ACT.
C. THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
NANCE IN ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH AFTER DETER-
MINING THE INCOME OF THE PARTIES:
(1) WHERE THE PAYOR'S INCOME IS UP TO AND INCLUDING THE INCOME CAP:
(A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE INCOME OF THE PAYEE
FROM THIRTY PERCENT OF THE INCOME UP TO THE INCOME CAP OF THE PAYOR.
(B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME UP TO
AND INCLUDING THE INCOME CAP AND ALL OF THE PAYEE'S INCOME BY FORTY
PERCENT.
(C) THE COURT SHALL SUBTRACT THE INCOME OF THE PAYEE FROM THE AMOUNT
DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
(D) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE LOWER
OF THE AMOUNTS DETERMINED BY CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH;
IF THE AMOUNT DETERMINED BY CLAUSE (C) OF THIS SUBPARAGRAPH IS LESS THAN
OR EQUAL TO ZERO, THE GUIDELINE AMOUNT SHALL BE ZERO DOLLARS.
(2) WHERE THE INCOME OF THE PAYOR EXCEEDS THE INCOME CAP:
(A) THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAIN-
TENANCE FOR THAT PORTION OF THE PAYOR'S INCOME THAT IS UP TO AND INCLUD-
ING THE INCOME CAP ACCORDING TO SUBPARAGRAPH ONE OF THIS PARAGRAPH, AND,
FOR THE PAYOR'S INCOME IN EXCESS OF THE INCOME CAP, THE COURT SHALL
DETERMINE ANY ADDITIONAL GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE
THROUGH CONSIDERATION OF THE FOLLOWING FACTORS:
(I) THE LENGTH OF THE MARRIAGE;
(II) THE SUBSTANTIAL DIFFERENCES IN THE INCOMES OF THE PARTIES;
(III) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
(IV) THE AGE AND HEALTH OF THE PARTIES;
(V) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES;
(VI) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
(VII) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
(VIII) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMO-
NIAL ACTION WITHOUT FAIR CONSIDERATION;
(IX) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
(X) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
(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
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CONTINUES TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN
MEANINGFUL EMPLOYMENT;
(XIII) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE
TO AGE OR ABSENCE FROM THE WORKFORCE;
(XIV) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE
CHILD OR CHILDREN, INCLUDING, BUT NOT LIMITED TO, SCHOOLING, DAY CARE
AND MEDICAL TREATMENT;
(XV) THE TAX CONSEQUENCES TO EACH PARTY;
(XVI) MARITAL PROPERTY SUBJECT TO DISTRIBUTION PURSUANT TO SUBDIVISION
FIVE OF THIS PART;
(XVII) THE REDUCED OR LOST EARNING CAPACITY OF THE PARTY SEEKING
TEMPORARY MAINTENANCE AS A RESULT OF HAVING FOREGONE OR DELAYED EDUCA-
TION, TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE;
(XVIII) THE CONTRIBUTIONS AND SERVICES OF THE PARTY SEEKING TEMPORARY
MAINTENANCE AS A SPOUSE, PARENT, WAGE EARNER AND HOMEMAKER AND TO THE
CAREER OR CAREER POTENTIAL OF THE OTHER PARTY; AND
(XIX) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
(B) IN ANY DECISION MADE PURSUANT TO THIS SUBPARAGRAPH, THE COURT
SHALL SET FORTH THE FACTORS IT CONSIDERED AND THE REASONS FOR ITS DECI-
SION. SUCH WRITTEN ORDER MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
(3) NOTWITHSTANDING THE PROVISIONS OF THIS PARAGRAPH, WHERE THE GUIDE-
LINE AMOUNT OF TEMPORARY MAINTENANCE WOULD REDUCE THE PAYOR'S INCOME
BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE PRESUMPTIVE
AMOUNT OF THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE
DIFFERENCE BETWEEN THE PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE. IF
THE PAYOR'S INCOME IS BELOW THE SELF-SUPPORT RESERVE, THERE IS A REBUTT-
ABLE PRESUMPTION THAT NO TEMPORARY MAINTENANCE IS AWARDED.
D. THE COURT SHALL DETERMINE THE GUIDELINE DURATION OF TEMPORARY MAIN-
TENANCE BY CONSIDERING THE LENGTH OF THE MARRIAGE. TEMPORARY MAINTENANCE
SHALL TERMINATE UPON THE ISSUANCE OF THE FINAL AWARD OF MAINTENANCE OR
THE DEATH OF EITHER PARTY, WHICHEVER OCCURS FIRST.
E. (1) THE COURT SHALL ORDER THE PRESUMPTIVE AWARD OF TEMPORARY MAIN-
TENANCE IN ACCORDANCE WITH PARAGRAPHS C AND D OF THIS SUBDIVISION,
UNLESS THE COURT FINDS THAT THE PRESUMPTIVE AWARD IS UNJUST OR INAPPRO-
PRIATE AND ADJUSTS THE PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE
ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING FACTORS:
(A) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
(B) THE AGE AND HEALTH OF THE PARTIES;
(C) THE EARNING CAPACITY OF THE PARTIES;
(D) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
(E) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
(F) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMONIAL
ACTION WITHOUT FAIR CONSIDERATION;
(G) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
(H) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
(I) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
(J) THE CARE OF THE CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN
OR STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS THAT HAS INHIBITED OR
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CONTINUES TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN
MEANINGFUL EMPLOYMENT;
(K) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE TO
AGE OR ABSENCE FROM THE WORKFORCE;
(L) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD
OR CHILDREN, INCLUDING, BUT NOT LIMITED TO, SCHOOLING, DAY CARE AND
MEDICAL TREATMENT;
(M) THE TAX CONSEQUENCES TO EACH PARTY;
(N) MARITAL PROPERTY SUBJECT TO DISTRIBUTION PURSUANT TO SUBDIVISION
FIVE OF THIS PART;
(O) THE REDUCED OR LOST EARNING CAPACITY OF THE PARTY SEEKING TEMPO-
RARY MAINTENANCE AS A RESULT OF HAVING FOREGONE OR DELAYED EDUCATION,
TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE;
(P) THE CONTRIBUTIONS AND SERVICES OF THE PARTY SEEKING TEMPORARY
MAINTENANCE AS A SPOUSE, PARENT, WAGE EARNER AND HOMEMAKER AND TO THE
CAREER OR CAREER POTENTIAL OF THE OTHER PARTY; AND
(Q) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
(2) WHERE THE COURT FINDS THAT THE PRESUMPTIVE AWARD OF TEMPORARY
MAINTENANCE IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE
PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE PURSUANT TO THIS PARAGRAPH,
THE COURT SHALL SET FORTH, IN A WRITTEN ORDER, THE AMOUNT OF THE UNAD-
JUSTED PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE, THE FACTORS IT
CONSIDERED, AND THE REASONS THAT THE COURT ADJUSTED THE PRESUMPTIVE
AWARD OF TEMPORARY MAINTENANCE. SUCH WRITTEN ORDER SHALL NOT BE WAIVED
BY EITHER PARTY OR COUNSEL.
(3) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL
NOT ENTER A TEMPORARY MAINTENANCE ORDER UNLESS THE UNREPRESENTED PARTY
OR PARTIES HAVE BEEN INFORMED OF THE PRESUMPTIVE AWARD OF TEMPORARY
MAINTENANCE.
F. A VALIDLY EXECUTED AGREEMENT OR STIPULATION VOLUNTARILY ENTERED
INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE
OF THIS SUBDIVISION PRESENTED TO THE COURT FOR INCORPORATION IN AN ORDER
SHALL INCLUDE A PROVISION STATING THAT THE PARTIES HAVE BEEN ADVISED OF
THE PROVISIONS OF THIS SUBDIVISION, AND THAT THE PRESUMPTIVE AWARD
PROVIDED FOR THEREIN RESULTS IN THE CORRECT AMOUNT OF TEMPORARY MAINTE-
NANCE. IN THE EVENT THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE
PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE, THE AGREEMENT OR STIPULATION
MUST SPECIFY THE AMOUNT THAT SUCH PRESUMPTIVE AWARD OF TEMPORARY MAINTE-
NANCE WOULD HAVE BEEN AND THE REASON OR REASONS THAT SUCH AGREEMENT OR
STIPULATION DOES NOT PROVIDE FOR PAYMENT OF THAT AMOUNT. SUCH PROVISION
MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL. NOTHING CONTAINED IN THIS
SUBDIVISION SHALL BE CONSTRUED TO ALTER THE RIGHTS OF THE PARTIES TO
VOLUNTARILY ENTER INTO VALIDLY EXECUTED AGREEMENTS OR STIPULATIONS WHICH
DEVIATE FROM THE PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE PROVIDED
SUCH AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS
SUBDIVISION. THE COURT SHALL, HOWEVER, RETAIN DISCRETION WITH RESPECT TO
TEMPORARY, AND POST-DIVORCE MAINTENANCE AWARDS PURSUANT TO THIS SECTION.
ANY COURT ORDER INCORPORATING A VALIDLY EXECUTED AGREEMENT OR STIPU-
LATION WHICH DEVIATES FROM THE PRESUMPTIVE AWARD OF TEMPORARY MAINTE-
NANCE SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION.
G. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
WITH INSUFFICIENT EVIDENCE TO DETERMINE GROSS INCOME, THE COURT SHALL
ORDER THE TEMPORARY MAINTENANCE AWARD BASED UPON THE NEEDS OF THE PAYEE
OR THE STANDARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE
DIVORCE ACTION, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROACTIVELY
S. 8390 5
MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON A
SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
H. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVI-
SION, BROUGHT PURSUANT TO THIS ARTICLE, THE TEMPORARY MAINTENANCE GUIDE-
LINES SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF
CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
I. IN ANY DECISION MADE PURSUANT TO THIS SUBDIVISION THE COURT SHALL,
WHERE APPROPRIATE, CONSIDER THE EFFECT OF A BARRIER TO REMARRIAGE, AS
DEFINED IN SUBDIVISION SIX OF SECTION TWO HUNDRED FIFTY-THREE OF THIS
ARTICLE, ON THE FACTORS ENUMERATED IN THIS SUBDIVISION.
S 2. Subdivision 6 of part B of section 236 of the domestic relations
law, as amended by chapter 884 of the laws of 1986, subparagraph 10 as
amended, subparagraph 11 as added and subparagraph 12 of paragraph a as
renumbered by chapter 229 of the laws of 2009, paragraph d as added by
chapter 415 of the laws of 1992, is amended to read as follows:
6. [Maintenance] POST-DIVORCE MAINTENANCE AWARDS. a. Except where the
parties have entered into an agreement pursuant to subdivision three of
this part providing for maintenance, in any matrimonial action the court
may order [temporary maintenance or] maintenance in such amount as
justice requires, having regard for the standard of living of the
parties established during the marriage, whether the party in whose
favor maintenance is granted lacks sufficient property and income to
provide for his or her reasonable needs and whether the other party has
sufficient property or income to provide for the reasonable needs of the
other and the circumstances of the case and of the respective parties.
Such order shall be effective as of the date of the application there-
for, and any retroactive amount of maintenance due shall be paid in one
sum or periodic sums, as the court shall direct, taking into account any
amount of temporary maintenance which has been paid. In determining the
amount and duration of maintenance the court shall consider:
(1) the income and property of the respective parties including mari-
tal property distributed pursuant to subdivision five of this part;
(2) the [duration] LENGTH of the marriage [and];
(3) the age and health of both parties;
[(3)] (4) the present and future earning capacity of both parties;
[(4)] (5) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING
EXPENSES;
(6) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
(7) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
(8) the ability of the party seeking maintenance to become self-sup-
porting and, if applicable, the period of time and training necessary
therefor;
[(5)] (9) reduced or lost lifetime earning capacity of the party seek-
ing maintenance as a result of having foregone or delayed education,
training, employment, or career opportunities during the marriage;
[(6)] (10) the presence of children of the marriage in the respective
homes of the parties;
[(7)] (11) THE CARE OF THE CHILDREN OR STEPCHILDREN, DISABLED ADULT
CHILDREN OR STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS THAT HAS INHIBITED
OR CONTINUES TO INHIBIT A PARTY'S EARNING CAPACITY;
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(12) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE TO
AGE OR ABSENCE FROM THE WORKFORCE;
(13) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE
CHILD/CHILDREN, INCLUDING BUT NOT LIMITED TO, SCHOOLING, DAY CARE AND
MEDICAL TREATMENT;
(14) the tax consequences to each party;
[(8)] (15) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY;
(16) contributions and services of the party seeking maintenance as a
spouse, parent, wage earner and homemaker, and to the career or career
potential of the other party;
[(9)] (17) the wasteful dissipation of marital property by either
spouse;
[(10) any] (18) THE transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
[(11)] (19) the loss of health insurance benefits upon dissolution of
the marriage, AND THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE
PARTIES; and
[(12)] (20) any other factor which the court shall expressly find to
be just and proper.
b. In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
c. The court may award permanent maintenance, but an award of mainte-
nance shall terminate upon the death of either party or upon the recipi-
ent's valid or invalid marriage, or upon modification pursuant to para-
graph [(b)] B of subdivision nine of [section two hundred thirty-six of]
this part or section two hundred forty-eight of this chapter.
d. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph a of this subdivision.
S 3. Part B of section 236 of the domestic relations law is amended by
adding a new subdivision 6-a to read as follows:
6-A. LAW REVISION COMMISSION STUDY. A. THE LEGISLATURE HEREBY FINDS
AND DECLARES IT TO BE THE POLICY OF THE STATE THAT IT IS NECESSARY TO
ACHIEVE EQUITABLE OUTCOMES WHEN FAMILIES DIVORCE AND IT IS IMPORTANT TO
ENSURE THAT THE ECONOMIC CONSEQUENCES OF A DIVORCE ARE FAIRLY SHARED BY
DIVORCING COUPLES. SERIOUS CONCERNS HAVE BEEN RAISED THAT THE IMPLEMEN-
TATION OF NEW YORK STATE'S MAINTENANCE LAWS HAVE NOT RESULTED IN EQUITA-
BLE RESULTS. MAINTENANCE IS OFTEN NOT GRANTED AND WHERE IT IS GRANTED,
THE RESULTS ARE INCONSISTENT AND UNPREDICTABLE. THIS RAISES SERIOUS
CONCERNS ABOUT THE ABILITY OF OUR CURRENT MAINTENANCE LAWS TO ACHIEVE
EQUITABLE AND FAIR OUTCOMES.
THE LEGISLATURE FURTHER FINDS A COMPREHENSIVE REVIEW OF THE PROVISIONS
OF OUR STATE'S MAINTENANCE LAWS SHOULD BE UNDERTAKEN. IT HAS BEEN THIRTY
YEARS SINCE THE LEGISLATURE SIGNIFICANTLY REFORMED OUR STATE'S DIVORCE
LAWS BY ENACTING EQUITABLE DISTRIBUTION OF MARITAL PROPERTY AND INTRO-
DUCED THE CONCEPT OF MAINTENANCE TO REPLACE ALIMONY. CONCERNS THAT THE
IMPLEMENTATION OF OUR MAINTENANCE LAWS HAVE NOT RESULTED IN EQUITABLE
RESULTS COMPEL THE NEED FOR A REVIEW OF THESE LAWS.
B. THE LAW REVISION COMMISSION IS HEREBY DIRECTED TO:
(1) REVIEW AND ASSESS THE ECONOMIC CONSEQUENCES OF DIVORCE ON THE
PARTIES;
(2) REVIEW THE MAINTENANCE LAWS OF THE STATE, INCLUDING THE WAY IN
WHICH THEY ARE ADMINISTERED TO DETERMINE THE IMPACT OF THESE LAWS ON
POST MARITAL ECONOMIC DISPARITIES, AND THE EFFECTIVENESS OF SUCH LAWS
S. 8390 7
AND THEIR ADMINISTRATION IN ACHIEVING THE STATE'S POLICY GOALS AND
OBJECTIVES OF ENSURING THAT THE ECONOMIC CONSEQUENCES OF A DIVORCE ARE
FAIRLY AND EQUITABLY SHARED BY THE DIVORCING COUPLE; AND
(3) MAKE RECOMMENDATIONS TO THE LEGISLATURE, INCLUDING SUCH PROPOSED
REVISIONS OF SUCH LAWS AS IT DETERMINES NECESSARY TO ACHIEVE THESE GOALS
AND OBJECTIVES.
C. THE LAW REVISION COMMISSION SHALL MAKE A PRELIMINARY REPORT TO THE
LEGISLATURE AND THE GOVERNOR OF ITS FINDINGS, CONCLUSIONS, AND ANY
RECOMMENDATIONS NOT LATER THAN NINE MONTHS FROM THE EFFECTIVE DATE OF
THIS SUBDIVISION, AND A FINAL REPORT OF ITS FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS NOT LATER THAN DECEMBER THIRTY-FIRST, TWO THOUSAND ELEV-
EN.
S 4. Paragraph a of subdivision 1 of part B of section 236 of the
domestic relations law, as amended by chapter 884 of the laws of 1986,
is amended to read as follows:
a. The term "maintenance" shall mean payments provided for in a valid
agreement between the parties or awarded by the court in accordance with
the provisions of [subdivision] SUBDIVISIONS FIVE-A AND six of this
part, to be paid at fixed intervals for a definite or indefinite period
of time, but an award of maintenance shall terminate upon the death of
either party or upon the recipient's valid or invalid marriage, or upon
modification pursuant to paragraph (b) of subdivision nine of section
two hundred thirty-six of this part or section two hundred forty-eight
of this chapter.
S 5. The chief administrator of the courts shall promulgate all rules
necessary to implement the provisions of this act.
S 6. This act shall take effect immediately; provided, however, that
sections one, two and four of this act shall take effect on the sixtieth
day after this act shall have become a law and shall apply to matrimoni-
al actions commenced on or after the effective date of such sections.
