Senate Bill S5168

2013-2014 Legislative Session

Relates to temporary maintenance awards and maintenance obligations

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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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to judiciary
May 13, 2013	referred to judiciary

2013-S5168 (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Domestic Relations Law
Laws Affected:: Amd §236, Dom Rel L

2013-S5168 (ACTIVE) - Summary

Relates to modification of temporary maintenance awards and maintenance obligations.

2013-S5168 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5168

TITLE OF BILL:  An act to amend the domestic relations law, in
relation to modifications of temporary maintenance awards and
maintenance obligations

PURPOSE OF BILL: To continue taking steps toward reforming the state's
spousal maintenance awards in connection with temporary and final
spousal maintenance awards, providing consistency and predictability
in calculating maintenance awards.

SUMMARY OF PROVISIONS: OF BILL:

Section 1. Subdivision 5-a of Part B of section 236 of the Domestic
Relations Law (DRL) as added by chapter 371 of the laws of 2010, is
amended to clarify the calculation of the guideline amount of
temporary maintenance awards and to revise the factors to be
considered to adjust the guideline amount where the court finds the
guideline amount is unjust or inappropriate.

Section 2. Subdivision 6 of part B of section 236 of the DRL, as
amended by chapter 371 of the laws of 2010, is amended by providing
definitions and factors to be considered to adjust the guideline
amount of post-divorce maintenance award where the court finds the
guideline amount is unjust or inappropriate, consistent with the
definitions and factors provided in connection with determining the

guideline amount of temporary maintenance. This section also provided
for the guideline duration of post-divorce maintenance.

Section 3. Subparagraph 1 of paragraph b of subdivision 9 of Part B of
section 236 of the DRL, as amended by chapter 182 of the laws of 2010,
is amended to provide that a court may annul or modify a prior order
or judgment for maintenance upon a showing of a substantial change in
circumstances, including remarriage of the payee if the remarriage
results in a substantial change in financial circumstances, or actual
retirement of the payor if the retirement results in substantial
change in financial circumstances.

Section 4. Provides for the effective date.

JUSTIFICATION:  This bill completes reforms of New York divorce laws
begun in 2010 with the adoption of standards for temporary maintenance
similar to the standards used for child support. The bill makes three
kinds of changes to current law. First, it makes technical amendments
to the temporary maintenance provisions enacted in 2010, including
restating in clearer, simpler language the method for calculating the
temporary maintenance guideline amount. Second, the bill adopts
maintenance standards for final maintenance awards similar to those
adopted in the 2010 law for temporary maintenance awards. And, third,
the bill provides increased guidance to courts hearing motions to
modify maintenance awards by clarifying when remarriage and retirement
provide bases for modification.

In 2010, New York State adopted standards for temporary maintenance
similar to the standards for child support in the Child Support
Standards Act in use since 1989. This reform was a response to serious
concerns about the ability of the State's then existing spousal


maintenance provisions to produce equitable results. Spousal
maintenance awards at the time were inconsistent and unpredictable,
creating questions about the fairness of awards and discouraging
settlements. Litigation to establish maintenance was lengthy and
complex. For parties who could not afford protracted litigation,
maintenance was an illusory remedy.

The 2010 reforms began the process of incorporating into provisions
for spousal maintenance the concept of marriage as an economic
partnership, an idea that New York State adopted for equitable
distribution in 1980. Divorce remedies that look to the economic
partnership premise maintenance on the recognition that parties make
different contributions to a marriage, that only some of those
contributions are financial, and that some contributions, Particularly
those of caring for children and a household, diminish post-divorce
earning prospects.

As stated in the justification for the 2010 temporary maintenance
legislation, a commission of the American Academy of Matrimonial
Lawyers (AAML Commission) noted that various jurisdictions had adopted
a formula approach to determining spousal support. The AAML Commission
recommended the use of a formula based on two universal factors, the
income of the parties and the length of the marriage.  Additionally,
the American Law Institute, in "Principles of the Law of Family
Dissolution; Analysis and Recommendations" (2000) of the American Law
Institute (ALI Principles), identified economic losses that spouses
suffer at the end of marriage. These losses often take the form of
lower earning capacity for spouses who are primary caretakers of
children. The ALI Principles suggest that these losses be shared
through a formula for determining post-marital spousal support that
takes into account the incomes of the parties and the length of the
marriage.

Like the Child Support Standards Act, the 2010 temporary maintenance
law provided not just a formula but flexibility through provisions
allowing the court to adjust guideline amounts up or down when numbers
produced by the formula were inappropriate or unjust. Also mirroring
provisions of the Child Support Standards Act, the law provided a list
of factors for the court to consider when making adjustments and
required courts to provide written explanations for their
justifications.

Attorneys representing low and moderate income parties report that
clients who in spite of great need would have been unable to undertake
the litigation necessary for a temporary maintenance award under the
vague provisions under previous law have been receiving temporary
maintenance as a result of the law enacted in 2010. These awards are
the result both of judicial rulings and, equally importantly, of
settlements informed by clear standards allowing lawyers to predict
litigation outcomes. Courts have taken advantage of the sections
providing flexibility and have adjusted awards when necessary for
equity in particular cases. Dozens of decisions have been published.

Section one of this bill makes technical adjustments, refining,
clarifying, and streamlining the current temporary maintenance
standards law. Most of the changes restate existing law in simpler
forms. The provisions for calculating the formula amount, for example,


now track the case law for calculating child support below and above
the income cap. Factors for judges to consider when adjusting awards
have been condensed and those inapplicable to temporary maintenance
removed.

Section two of this bill extends the benefits of the temporary
maintenance provisions to final maintenance awards. Although the
principle of the temporary maintenance standards may have had some
effect on final awards, final maintenance awards remain the "wild
card" in divorce litigation. Awards are still inconsistent and
unpredictable, and lengthy, expensive litigation is still necessary to
achieve an equitable result. Using guidelines based on a formula with
flexibility for adjustments up and down fox final maintenance will
change this.

Much of the second section of the bill tracks the language of the
temporary maintenance law, including the restated and clarified
provisions set forth in this bill for calculating the guideline amount
of a temporary maintenance award. The major differences between the
temporary and final maintenance provisions are the sections on
duration. Temporary maintenance lasts until the legal case concludes
with a final judgment of divorce. Final maintenance needs its own
clear end point, and this bill proscribes a duration calculated as a
percent of the length of the marriage. The longer the marriage, the
longer the time the maintenance will be paid. The bill also provides
that maintenance payments will end on the death of either party.

Section three of this bill amends New York's divorce laws to provide
guidance for the court in deciding applications for modification of
maintenance awards. It specifies two additional circumstances that
support modification. The first is remarriage of the payee spouse.
While remarriage does not necessarily improve financial status,
remarriage in some cases may better substantially the financial
standing of the payee spouse. When it does, this section allows a
judge to modify an earlier order. The second circumstance Specified in
this bill is the actual retirement of the payor spouse. Just as
remarriage does not necessarily improve the financial status of a
payee spouse, retirement does not necessarily decrease the income of a
payor spouse. Retirement has become a fluid concept. People commonly
work beyond traditional or social security retirement ages, and many
who retire from one job find other employment, either full-time or
part-time. Judges can make fair determinations about modifications
only by examining the changed financial status upon actual retirement,
not by speculating or making assumptions about future retirement.

LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  None.

EFFECTIVE DATE:  This act shall take effect immediately.

2013-S5168 (ACTIVE) - Bill Text download pdf

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

                                  5168

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 13, 2013
                               ___________

Introduced  by  Sen. MARTINS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the domestic relations law, in relation to modifications
  of temporary maintenance awards and maintenance obligations

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

  Section  1.  Subdivision  5-a of part B of section 236 of the domestic
relations law, as added by chapter 371 of the laws of 2010,  is  amended
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)]  (4)  "Income  cap"  shall mean up to and including five hundred
thousand dollars of the payor's annual income; provided, however, begin-
ning January thirty-first, two thousand [twelve] FOURTEEN and every  two
years  thereafter, the [payor's annual] income CAP amount shall increase
by the product of the average annual percentage changes in the  consumer

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09639-04-3

S. 5168                             2

price  index  for all urban consumers (CPI-U) as published by the United
States department of labor bureau of labor statistics for the  two  year
period  rounded to the nearest one thousand dollars. The office of court
administration shall determine and publish the income cap.
  [(6)]  (5)  "Guideline amount of temporary maintenance" shall mean the
sum derived by the application of paragraph c OR D 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)] (6) "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 main-
tenance 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;

S. 5168                             3

  (xii) the care of the children or stepchildren, disabled  adult  chil-
dren  or  stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity  or  ability  to  obtain
meaningful employment;
  (xiii)  the inability of one party to obtain meaningful employment due
to age or absence from the workforce;
  (xiv) the need to pay for  exceptional  additional  expenses  for  the
child  or  children,  including, but not limited to, schooling, day care
and medical treatment;
  (xv) the tax consequences to each party;
  (xvi) marital property subject to distribution pursuant to subdivision
five of this part;
  (xvii) the reduced or lost  earning  capacity  of  the  party  seeking
temporary  maintenance  as a result of having foregone or delayed educa-
tion, training, employment or career opportunities during the marriage;
  (xviii) the contributions and services of the party seeking  temporary
maintenance  as  a  spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and
  (xix) any other factor which the court shall expressly find to be just
and proper.
  (b)] WHEN THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY  MAINTENANCE
AS FOLLOWS:
  (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
  (2)  THE  COURT  SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
  (3) THE COURT SHALL  SUBTRACT  THE  PAYEE'S  INCOME  FROM  THE  AMOUNT
DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
  (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
GRAPHS ONE AND THREE OF THIS PARAGRAPH.
  (5)  THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE AMOUNT
DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT  THAT,  IF  THE
AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR
EQUAL  TO  ZERO,  THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE
ZERO DOLLARS.
  D. WHEN THE PAYOR'S INCOME EXCEEDS THE INCOME  CAP,  THE  COURT  SHALL
DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE AS FOLLOWS:
  (1)  THE  COURT  SHALL  PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
INCOMES OF PAYOR AND PAYEE.
  (2) THE COURT SHALL PERFORM THE CALCULATIONS  SET  FORTH  IN  SUBPARA-
GRAPHS  ONE  THROUGH  FOUR  OF  PARAGRAPH  C OF THIS SUBDIVISION FOR THE
INCOMES OF PAYOR AND PAYEE UP TO AND INCLUDING THE INCOME CAP.
  (3) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE EITHER:
  (A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF  THIS  PARAGRAPH;
OR
  (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
AMOUNT  THAT  THE  COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH G OF THIS SUBDIVISION.
  (4) In any decision made pursuant to CLAUSE (B) OF SUBPARAGRAPH  THREE
OF  this [subparagraph] PARAGRAPH, the court shall set forth the factors
it considered and the reasons for its WRITTEN OR ORAL  decision.    Such
written order may not be waived by either party or counsel.
  [(3)]  E.  Notwithstanding the provisions of this [paragraph] SUBDIVI-
SION, where the guideline amount of temporary maintenance  would  reduce

S. 5168                             4

the  payor's  income below the self-support reserve for a single person,
[the presumptive amount of] the guideline amount  of  temporary  mainte-
nance  shall  be the difference between the payor's income and the self-
support  reserve.  If  the  payor's  income  is  below  the self-support
reserve, there is a rebuttable presumption that no temporary maintenance
is awarded.
  [d. The court shall determine  the  guideline  duration  of  temporary
maintenance by considering the length of the marriage.]
  F.  Temporary  maintenance  shall  terminate  upon the issuance of the
final [award] DETERMINATION of maintenance or the death of either party,
whichever occurs first.
  [e.] G. (1) The court shall order the  [presumptive  award]  GUIDELINE
AMOUNT of temporary maintenance in accordance with paragraphs c and d of
this  subdivision,  unless  the court finds that the [presumptive award]
GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE is unjust or inappropriate and
adjusts the [presumptive award] GUIDELINE AMOUNT  of  temporary  mainte-
nance 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)] (B) the PRESENT OR  FUTURE  earning  capacity  of  the  parties,
INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
  [(d) the need of one party to incur education or training expenses;
  (e)] (C) the wasteful dissipation of marital property[;
  (f)  the  transfer], INCLUDING TRANSFERS or [encumbrance] ENCUMBRANCES
made in contemplation of a matrimonial  action  without  fair  consider-
ation;
  [(g)]  (D) the existence and duration of a pre-marital joint household
or a pre-divorce separate household;
  [(h)] (E) 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)] OR THAT CONSTITUTE EGREGIOUS CONDUCT;
  (F) the availability and cost of medical insurance for the parties;
  [(j)]  (G)  the care of [the] children or stepchildren, disabled adult
children or stepchildren, elderly parents or in-laws PROVIDED DURING THE
MARRIAGE that [has inhibited or continues to inhibit] INHIBITS 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)] (H) the tax consequences to each party;
  (I) THE STANDARD OF LIVING  OF  THE  PARTIES  ESTABLISHED  DURING  THE
MARRIAGE; AND
  [(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

S. 5168                             5

  (q)] (J) 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] GUIDELINE AMOUNT OF  TEMPORARY  MAINTENANCE  is  unjust  or
inappropriate  and  the  court adjusts the [presumptive award] GUIDELINE
AMOUNT of temporary maintenance pursuant to this  paragraph,  the  court
shall  set  forth, in a written [order] OR ORAL DECISION, the [amount of
the unadjusted presumptive award] GUIDELINE AMOUNT of temporary  mainte-
nance,  the  factors  it  considered,  and  the  reasons  that the court
adjusted the [presumptive award] GUIDELINE AMOUNT of  temporary  mainte-
nance.  [Such written order shall not be waived by either party or coun-
sel.]
  (3) Where either or both parties are unrepresented,  the  court  shall
not  enter  a  temporary  maintenance order unless the COURT INFORMS THE
unrepresented party or parties [have been informed] of the  [presumptive
award] GUIDELINE AMOUNT 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.] H. 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 commence-
ment  of  the  divorce  action,  whichever is greater. Such order may be
retroactively modified upward without a showing  of  change  in  circum-
stances upon a showing of newly discovered or obtained evidence.
  [h.]  I.  In  any action or proceeding for modification of an order of
maintenance or alimony existing prior to  the  effective  date  of  this
subdivision, brought pursuant to this article, the temporary maintenance
guidelines  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 371 of the laws of 2010, is amended to read
as follows:

S. 5168                             6

  6. 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  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 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 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 length of the marriage;
  (3) the age and health of both parties;
  (4) the present and future earning capacity of both parties;
  (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;
  (9) reduced or lost lifetime earning capacity  of  the  party  seeking
maintenance  as a result of having foregone or delayed education, train-
ing, employment, or career opportunities during the marriage;
  (10) the presence of children of the marriage in the respective  homes
of the parties;
  (11) the care of the children or stepchildren, disabled adult children
or  stepchildren,  elderly  parents  or  in-laws  that  has inhibited or
continues to inhibit a party's earning capacity;
  (12) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
  (13) the need to pay  for  exceptional  additional  expenses  for  the
child/children,  including  but  not limited to, schooling, day care and
medical treatment;
  (14) the tax consequences to each party;
  (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;
  (17) the wasteful dissipation of marital property by either spouse;
  (18) the transfer or encumbrance made in contemplation of a matrimoni-
al action without fair consideration;
  (19) the loss of health insurance benefits  upon  dissolution  of  the
marriage,  and  the  availability  and cost of medical insurance for the
parties; and

S. 5168                             7

  (20) any other factor which the court shall expressly find to be  just
and  proper]  SHALL MAKE THE AWARD FOR POST-DIVORCE MAINTENANCE PURSUANT
TO THE PROVISIONS OF THIS SUBDIVISION.
  b. [In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
  c.  The court may award permanent maintenance, but an award of mainte-
nance shall terminate upon the death of either party or upon the recipi-
ent's valid or invalid marriage, or upon modification pursuant to  para-
graph  b  of  subdivision  nine  of  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.]
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) "INCOME" SHALL MEAN:
  (I)  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, EXCEPT THAT TEMPORARY MAINTENANCE PAID
PURSUANT  TO  SUBDIVISION  FIVE-A  OF THIS PART AND SPOUSAL SUPPORT PAID
PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT  ACT,  SHALL
NOT BE DEDUCTED FROM PAYOR'S INCOME; AND
  (II)  INCOME  FROM  INCOME-PRODUCING  PROPERTY  DISTRIBUTED  OR  TO BE
DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
  (4) "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 FOURTEEN AND EVERY TWO YEARS THEREAFTER,
THE INCOME CAP 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 NEAREST ONE
THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
  (5) "GUIDELINE AMOUNT OF  POST-DIVORCE  MAINTENANCE"  SHALL  MEAN  THE
DOLLAR  AMOUNT  DERIVED  BY  THE APPLICATION OF PARAGRAPH C OR D OF THIS
SUBDIVISION.
  (6) "GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE"  SHALL  MEAN  THE
DURATIONAL  PERIOD  DETERMINED BY THE APPLICATION OF PARAGRAPH E OF THIS
SUBDIVISION.
  (7) "POST-DIVORCE MAINTENANCE GUIDELINE  OBLIGATION"  SHALL  MEAN  THE
GUIDELINE  AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE DURATION
OF POST-DIVORCE MAINTENANCE.
  (8) "POST-DIVORCE MAINTENANCE" SHALL MEAN A SUM TO BE PAID PURSUANT TO
A FINAL COURT ORDER  OR  DECREE  DISSOLVING  OR  ANNULLING  A  MARRIAGE,
DECLARING  THE  NULLITY OF A MARRIAGE, OR A VALID AGREEMENT, BETWEEN THE
PARTIES, BY ONE PARTY TO THE OTHER.
  (9) LENGTH OF MARRIAGE SHALL MEAN THE PERIOD FROM THE DATE OF MARRIAGE
UNTIL THE DATE OF COMMENCEMENT OF ACTION.
  (10) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS  IS
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.

S. 5168                             8

  C.  WHEN  THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF  POST-DIVORCE  MAINTE-
NANCE AS FOLLOWS:
  (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
  (2)  THE  COURT  SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
  (3) THE COURT SHALL  SUBTRACT  THE  PAYEE'S  INCOME  FROM  THE  AMOUNT
DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
  (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
GRAPHS ONE AND THREE OF THIS PARAGRAPH.
  (5)  THE  GUIDELINE  AMOUNT  OF  POST-DIVORCE MAINTENANCE SHALL BE THE
AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF
THE AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF  THIS  PARAGRAPH  IS  LESS
THAN  OR EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE
SHALL BE ZERO DOLLARS.
  (6) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH THREE OF THIS PARA-
GRAPH, WHERE THE ANNUAL AMOUNT OF POST-DIVORCE MAINTENANCE WOULD  REDUCE
THE  PAYOR'S  INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON,
THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION SHALL BE  THE  DIFFER-
ENCE BETWEEN THE PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE.
  D.  WHEN  THE  PAYOR'S  INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AS FOLLOWS:
  (1) THE COURT SHALL PERFORM THE CALCULATIONS  SET  FORTH  IN  SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
INCOMES OF PAYOR AND PAYEE.
  (2)  THE  COURT  SHALL  PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
GRAPHS ONE THROUGH FOUR OF PARAGRAPH  C  OF  THIS  SUBDIVISION  FOR  THE
INCOMES OF PAYOR AND PAYEE UP TO AND INCLUDING THE INCOME CAP.
  (3) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE EITHER:
  (A)  THE  CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
OR
  (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION  OF  THE  FACTORS
SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH F OF THIS SUBDIVISION.
  (4)  IN ANY DECISION MADE PURSUANT TO CLAUSE (B) OF SUBPARAGRAPH THREE
OF THIS PARAGRAPH, THE COURT SHALL SET FORTH THE FACTORS  IT  CONSIDERED
AND THE REASONS FOR ITS WRITTEN OR ORAL DECISION.
  E.  THE GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE SHALL BE DETER-
MINED AS FOLLOWS:
  (1) THE COURT SHALL DETERMINE THE GUIDELINE DURATION  OF  POST-DIVORCE
MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:
     LENGTH OF THE MARRIAGE               % OF THE LENGTH OF THE MARRIAGE
                                               FOR WHICH MAINTENANCE
                                                   WILL BE PAYABLE
     0 UP TO AND INCLUDING 5 YEARS                      30%
     MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS         40%
     MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS        50%
     MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS       60%
     MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS       70%
     MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS       80%
     MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS       90%
     MORE THAN 20, UP TO AND INCLUDING 25 YEARS        100%
     MORE THAN 25 YEARS                           NONDURATIONAL
  (2)  NOTWITHSTANDING  THE PROVISIONS OF SUBPARAGRAPH (1) OF THIS PARA-
GRAPH, MAINTENANCE SHALL TERMINATE UPON THE DEATH OF THE PAYOR OR PAYEE.

S. 5168                             9

  F. (1) THE COURT SHALL ORDER THE  POST-DIVORCE  MAINTENANCE  GUIDELINE
OBLIGATION IN ACCORDANCE WITH PARAGRAPHS C, D AND E OF THIS SUBDIVISION,
UNLESS THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
GATION  IS  UNJUST OR INAPPROPRIATE AND ADJUSTS THE POST-DIVORCE MAINTE-
NANCE  GUIDELINE  OBLIGATION ACCORDINGLY BASED UPON CONSIDERATION OF THE
FOLLOWING FACTORS:
  (A) THE AGE AND HEALTH OF THE PARTIES;
  (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE  PARTIES,  INCLUDING
THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
  (C)  THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES OF PROPERTY  MADE  IN  CONTEMPLATION  OF  A  MATRIMONIAL
ACTION WITHOUT FAIR CONSIDERATION;
  (D)  THE  EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
  (E) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR  CONTINUE
TO  INHIBIT  A  PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT OR THAT CONSTITUTE EGREGIOUS CONDUCT;
  (F) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (G) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT  CHILDREN  OR
STEPCHILDREN,  ELDERLY  PARENTS  OR IN-LAWS PROVIDED DURING THE MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
  (H) THE TAX CONSEQUENCES TO EACH PARTY;
  (I) THE EQUITABLE DISTRIBUTION OF THE MARITAL PROPERTY;
  (J) THE EFFECT OF A BARRIER TO REMARRIAGE, AS DEFINED  IN  SUBDIVISION
SIX OF SECTION TWO HUNDRED FIFTY-THREE OF THIS ARTICLE;
  (K)  ANY  OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
  (2) WHERE THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE  GUIDELINE
OBLIGATION IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE POST-DI-
VORCE  MAINTENANCE  GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE
COURT SHALL SET FORTH, IN A WRITTEN OR ORAL DECISION, THE AMOUNT OF  THE
UNADJUSTED POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION, THE FACTORS IT
CONSIDERED,  AND  THE  REASONS  THAT THE COURT ADJUSTED THE POST-DIVORCE
MAINTENANCE OBLIGATION.
  G. WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT
ENTER A MAINTENANCE ORDER OR  JUDGMENT  UNLESS  THE  COURT  INFORMS  THE
UNREPRESENTED PARTY OR PARTIES OF THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION.
  H.  A  VALIDLY  EXECUTED  AGREEMENT OR STIPULATION VOLUNTARILY ENTERED
INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE
OF THIS PARAGRAPH PRESENTED TO THE COURT FOR INCORPORATION IN  AN  ORDER
OR JUDGMENT SHALL INCLUDE A PROVISION STATING THAT THE PARTIES HAVE BEEN
ADVISED  OF  THE PROVISIONS OF THIS PARAGRAPH, AND THAT THE POST-DIVORCE
MAINTENANCE PROVIDED FOR  THEREIN  WOULD  PRESUMPTIVELY  RESULT  IN  THE
AMOUNT  OF  POST-DIVORCE  MAINTENANCE GUIDELINE OBLIGATION. IN THE EVENT
THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE  MAIN-
TENANCE  GUIDELINE OBLIGATION, THE AGREEMENT OR STIPULATION MUST SPECIFY
THE AMOUNT THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION 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  PARAGRAPH
SHALL  BE  CONSTRUED  TO  ALTER THE RIGHTS OF THE PARTIES TO VOLUNTARILY
ENTER INTO VALIDLY EXECUTED AGREEMENTS  OR  STIPULATIONS  WHICH  DEVIATE
FROM  THE  POST-DIVORCE  MAINTENANCE  GUIDELINE OBLIGATION PROVIDED SUCH
AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS PARAGRAPH.

S. 5168                            10

  I. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE  PRESENTED
WITH  INSUFFICIENT  EVIDENCE  TO DETERMINE INCOME, THE COURT SHALL ORDER
THE POST-DIVORCE MAINTENANCE 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, AND UPON THE FACTORS SET FORTH IN SUBPARA-
GRAPH  ONE  OF  PARAGRAPH  F  OF  THIS  SUBDIVISION.   SUCH ORDER MAY BE
RETROACTIVELY MODIFIED UPWARD WITHOUT A SHOWING  OF  CHANGE  IN  CIRCUM-
STANCES UPON A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
  J. POST-DIVORCE MAINTENANCE MAY BE MODIFIED PURSUANT TO PARAGRAPH B OF
SUBDIVISION NINE OF THIS PART.
  K. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THIS PARAGRAPH,
THE GUIDELINES FOR POST-DIVORCE MAINTENANCE SET FORTH IN PARAGRAPHS C, D
AND E OF THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES
WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
  L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THIS PARAGRAPH,
THE GUIDELINES FOR POST-DIVORCE MAINTENANCE SET FORTH IN PARAGRAPHS C, D
AND E OF THIS SUBDIVISION SHALL APPLY.
  S  3.  Subparagraph  1  of  paragraph  b of subdivision 9 of part B of
section 236 of the domestic relations law, as amended by chapter 182  of
the laws of 2010, is amended to read as follows:
  (1)  Upon  application  by either party, the court may annul or modify
any prior order or judgment as to maintenance, upon  a  showing  of  the
recipient's  inability to be self-supporting [or a substantial change in
circumstance or], THE termination of child support awarded  pursuant  to
section  two  hundred  forty  of  this  article, A SUBSTANTIAL CHANGE IN
CIRCUMSTANCES including financial hardship, REMARRIAGE OF THE  PAYEE  IF
THE  REMARRIAGE  RESULTS  IN  A  SUBSTANTIAL CHANGE IN FINANCIAL CIRCUM-
STANCES, OR ACTUAL RETIREMENT OF THE PAYOR IF THE RETIREMENT RESULTS  IN
SUBSTANTIAL  CHANGE  IN FINANCIAL CIRCUMSTANCES. Where, after the effec-
tive date of this part, a  separation  agreement  remains  in  force  no
modification  of  a  prior  order or judgment incorporating the terms of
said agreement shall be made as to  maintenance  without  a  showing  of
extreme  hardship  on either party, in which event the judgment or order
as modified shall supersede the terms of the prior agreement  and  judg-
ment  for  such period of time and under such circumstances as the court
determines. The court shall not reduce or annul any arrears  of  mainte-
nance  which have been reduced to final judgment pursuant to section two
hundred forty-four of this article.  No  other  arrears  of  maintenance
which  have  accrued  prior  to  the making of such application shall be
subject to modification or annulment unless the defaulting  party  shows
good  cause for failure to make application for relief from the judgment
or order directing such payment prior to the accrual of such arrears and
the facts and circumstances constituting good cause are set forth  in  a
written  memorandum  of decision. Such modification may increase mainte-
nance nunc pro tunc as of the date of application based on newly discov-
ered evidence. Any retroactive amount of maintenance due  shall,  except
as  provided  for  herein,  be  paid in one sum or periodic sums, as the
court directs, taking into account any  temporary  or  partial  payments
which have been made. The provisions of this subdivision shall not apply
to a separation agreement made prior to the effective date of this part.
  S 4. This act shall take effect immediately.

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Senate Bill S5168

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Sponsored By

Jack M. Martins

Archive: Last Bill Status - In Senate Committee Judiciary Committee

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