NY State Senate Bill 2013-S7266A

Senate Bill S7266A

2013-2014 Legislative Session

Provides for the duration and amount payable for temporary and post-divorce maintenance, and spousal support

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Archive: Last Bill Status - In Senate Committee Rules 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 20, 2014	committed to rules
Jun 16, 2014	amended on third reading 7266a
May 19, 2014	advanced to third reading
May 14, 2014	2nd report cal.
May 13, 2014	1st report cal.670
May 08, 2014	referred to judiciary

Votes

- May 13, 2014 - Judiciary Committee Vote
  S7266A
  
  16
  
  Aye
  
  0
  
  Nay
  
  6
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Judiciary Committee Vote: May 13, 2014
      
      aye (16)
      
      Addabbo Jr.
      
      Avella
      
      Bonacic
      
      Breslin
      
      Espaillat
      
      Flanagan
      
      Grisanti
      
      Hassell-Thompson
      
      Lanza
      
      Nozzolio
      
      O'Mara
      
      Perkins
      
      Savino
      
      Squadron
      
      Stavisky
      
      Zeldin
      
      aye wr (6)
      
      DeFrancisco
      
      Hannon
      
      Hoylman-Sigal
      
      LaValle
      
      Little
      
      Ranzenhofer
      
      excused (1)
      
      Dilan

Bill Amendments

Original

A (Active)

co-Sponsors

2013-S7266 - Details

See Assembly Version of this Bill:: A9606
Current Committee:: Senate Rules
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§236 & 248, Dom Rel L; amd §412, Fam Ct Act

2013-S7266 - Summary

Provides for the duration and amount payable for temporary and post-divorce maintenance, and spousal support.

2013-S7266 - Sponsor Memo

                                BILL NUMBER:S7266

TITLE OF BILL:  An act to amend the domestic relations law, in
relation to the duration and amount of maintenance; and to amend the
family court act, in relation to spousal support

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; and to update spousal support
awards law to mirror the revised provisions for temporary 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 one guideline amount where the court finds the
guideline amount is unjust or inappropriate. This section also reduces
the income cap from $500,000 to $300,000.

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 to provide, in
determining post-divorce maintenance, provisions that track the

provisions for determining temporary maintenance. This section also
provides 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, and actual
retirement of the payor if the retirement results in substantial
change in financial circumstances.

Section 4. Section 412 of the Family Court Act, as amended by chapter
231 of the laws of 1960, is amended to mirror the provisions of
temporary maintenance set forth in subdivision 5-a of Part B of
section 236 of the DRL.

Section 5. Paragraph a of subdivision 1 of part B of section 236 of
the DRL, as amended by chapter 371 of the laws of 2010, is amended to
replace "recipient" of maintenance to "payee."

Section 6. Subparagraph 7 of paragraph d of subdivision 5 of Part B of
section 236 of the DRL, as amended by chapter 281 of the laws of 1980
and as renumbered by chapter 229 of the laws of 2009, is amended to
provide that in determining an equitable disposition of property
pursuant to subdivision 5(c) of Part B of section 236 of the DRL, the
court shall not consider as marital property subject to distribution
the value of a spouse's enhanced earning capacity arising from a
license, degree, celebrity goodwill, or career enhancement. However,
the court, in arriving at an equitable division of marital property,
shall consider the direct or indirect contributions, to the


development during the marriage of the enhanced earning capacity of
the other spouse.

Section 7. Section 248 of the DRL is amended to replace language
referencing "husband" and "wife" to "spouse," "payor," and "payee."

Section 8. Effective Date.

JUSTIFICATION: This bill completes reforms of New York divorce laws
that started in 2010 with the adoption of standards for temporary
maintenance similar to the standards used for child support. The bill
makes several changes to current law. First, it amends the provisions
for temporary maintenance enacted in 2010 by lowering the provision's
income cap and by making technical and clarifying amendments,
including restating in simpler language the method for calculating the
temporary maintenance guideline amount. Second, the bill adopts
maintenance standards for post-divorce maintenance awards similar to
those for temporary maintenance awards. Third, the bill provides
increased guidance to courts hearing motions to modify maintenance
awards by clarifying that a substantial change in circumstances
includes financial hardship, remarriage of the payee if remarriage
results in a substantial change in financial circumstances, and actual
retirement of the payor if retirement results in a substantial change
in financial circumstances. Fourth, the bill extends the concept of
guidelines to the Family Court Act's provisions for spousal support.
Fifth, within the context of comprehensive legislation providing for
post-divorce maintenance guidelines, the bill eliminates increased
earning capacity from consideration in the distribution of marital
assets. And, sixth, the bill conforms other portions of the Domestic
Relations Law to make them consistent with the bill's provisions for
post-divorce maintenance.

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 base 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 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.

The 2010 temporary maintenance law provided not just consistency 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, 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 middle income parties report that
clients, who in spite of great need would have been unable to
undertake the litigation necessary for a maintenance award under the
vague provisions of the previous law, have been receiving temporary
maintenance as a result of the law enacted in 2010. These awards are
the result of judicial rulings under the new law and, equally
importantly, of settlements informed by clear standards allowing
lawyers to predict litigation outcomes. Courts have taken advantage of
the provisions providing flexibility and have adjusted awards when
necessary for equity in particular cases. Dozens of decisions have
been published.

The 2010 law also directed the New York State Law Revision Commission
(LRC) to, among other things "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 and their administration in achieving the
state's policy goals and objectives of ensure that the economic
consequences or a divorce are fairly and equitably shared by the
divorcing couple." (Sec. 3 of Chapter 371 of the Laws of 2010.)

The LRC issued its final report on May 15, 2013 of its findings,
conclusions and recommendations (the LRC Report). The LRC Report,
among other things, recommended that the mathematical formula set
forth in the 2010 law for the calculation of the guideline amount of
temporary maintenance be continued and that a mathematical formula be
similarly used to calculate the guideline amount of post-divorce
maintenance, with consideration by the court of a set of factors to
determine whether the guideline amount of post-divorce maintenance
should be increased where the parties' income exceeds the income cap.
The LRC also recommended that the provisions providing for spousal
support in Family Court proceedings be amended to mirror the temporary
maintenance law, revised as recommended by the LRC.

This bill incorporates many of the recommendations set forth in the
LRC Report.


Section one of this bill makes small adjustments that refine, clarify,
and streamline the current temporary maintenance standards law. The
provisions for calculating the formula amount have been simplified.
Factors for judges to consider when adjusting awards have been
condensed and clarified, and factors inapplicable to temporary
maintenance removed. Provisions confirming judicial practice,
concerning allocation of responsibility for family expenses and the
independence of decisions on temporary and cost-divorce maintenance,
have been added. The bill retains provisions for courts to consider
the length of marriage in setting the duration of maintenance so that
judges hearing cases involving short-term marriage may terminate
maintenance before the divorce is final. And, last, the bill lowers
the income cap used in temporary maintenance provisions from $500,000
to $300,000. The $300,000 cap takes into account the high cost of
litigating a right to maintenance without the kind of simplified
method provided for families by maintenance guidelines. This cost is
sufficiently high so that only the wealthiest divorcing spouses can
afford to litigate maintenance.

Section two of this bill extends the benefits of the temporary
maintenance provisions to post-divorce maintenance awards.
Post-divorce maintenance awards remain the "wild card" in divorce
litigation. Awards are still inconsistent and unpredictable, and
lengthy, expensive litigation is still necessary to achieve equitable
results. Using guidelines based on a formula with flexibility for
adjustments up and down for 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 post-divorce maintenance provisions are the provisions
on duration. Temporary maintenance usually lasts until a legal case
concludes with a final judgment of divorce, except where courts
terminate temporary maintenance prior to the divorce becoming final
based on consideration of the length of marriage as mentioned above.
Post-divorce maintenance needs its own clear end point, and this bill
proscribes a duration calculated as a percent of the length of the
marriage. Like the recommendations on duration in the AAML Commission
and the ALI Principles, the longer the marriage, the longer the time
post-divorce 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 that a substantial change in
circumstances includes remarriage of the payee spouse but only when
the remarriage results in a substantial change in the payee's
financial circumstances, and the actual retirement of the payer but
only when retirement results in a substantial change in the payor's
financial circumstances, in addition to financial hardship. While
remarriage does not necessarily improve financial status, remarriage
in some cases may better significantly the financial standing of the
payee spouse. When it does, this section allows a judge to modify an
earlier order. Just as remarriage does not necessarily improve the
financial status of a payee spouse, retirement does not necessarily
worsen the financial outlook 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.

Section four of the bill adopts the guideline approach to spousal
support proceedings brought in Family Court. The bill's spousal
support provisions closely track provisions for temporary maintenance
and make available to vulnerable spouses the same kind consistent,
predictable results that maintenance guidelines provide to divorcing
couples.

Section six amends the Domestic Relations Law to eliminate a form of
marital property, enhanced earning capacity, recognized by the Court
of Appeals in O'Brien v O'Brien, 66 NY 2d 576 (1985). Two essential
elements of the post-divorce guideline provisions of this bill make
possible the elimination of the treatment of enhanced earning capacity
as marital assets. First, the formula used in the bill's post-divorce
maintenance provisions is based on a rough assessment of future
earnings, i.e. current earning capacity, while provisions for
adjusting the guideline obligation allow judges to fine-tune the
initial assessments about what spouses are likely to earn
post-divorce. Second, the provisions for post-marital maintenance in
this bill, like obligations created in equitable distribution
provisions, allow for payments regardless of whether or not the
recipient remarries. Only if maintenance is calculated through use of
guidelines for both amount and duration and only if maintenance
payments may continue after remarriage can maintenance substitute for
treating enhanced earning capacity as a marital asset. To eliminate
enhanced earning capacity as a marital asset without these critical
reforms to our maintenance laws would be a great in justice to spouses
who have sacrificed their education and/or careers for the benefit of
the marital partnership.

Section seven amends the Domestic Relation Law relating to
applications made to the court by a spouse when their former spouse is
cohabitating with another person and is holding themselves out as a
spouse of that person. This section changes the language from "wife"
and "husband" to "spouse." Currently, the law assumes the wife is the
party cohabitating and being paid maintenance, and the husband is
making the application to the court for a change in maintenance paid.

LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  None.

EFFECTIVE DATE: This act shall take effect on the sixtieth day after
it shall become a law.

2013-S7266 - Bill Text download pdf

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

                                  7266

                            I N  S E N A T E

                               May 8, 2014
                               ___________

Introduced  by Sens. BONACIC, HASSELL-THOMPSON -- read twice and ordered
  printed, and when printed to be committed to the Committee on  Judici-
  ary

AN  ACT to amend the domestic relations law, in relation to the duration
  and amount of maintenance; and to  amend  the  family  court  act,  in
  relation to spousal support

  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) "Income cap" shall mean up to and including [five]  THREE  hundred
thousand dollars of the payor's annual income; provided, however, begin-
ning  January  thirty-first, two thousand [twelve] SIXTEEN and every two
years thereafter, the [payor's annual] income CAP amount shall  increase
by  the  [product]  SUM  of the average annual percentage changes in the
consumer price index for all urban consumers (CPI-U) as published by the

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

                                                           LBD15051-01-4

S. 7266                             2

United States department of labor bureau of  labor  statistics  for  the
PRIOR  two  [year period] YEARS MULTIPLIED BY THE CURRENT PAYOR'S ANNUAL
INCOME AMOUNT AND THEN rounded to the 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]
DOLLAR  AMOUNT  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)]  "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

S. 7266                             3

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
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)]  WHERE  THE  PAYOR'S  INCOME IS LOWER THAN OR EQUAL TO THE INCOME
CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY 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 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.  WHERE  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
INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
PAYEE.
  (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 H 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

S. 7266                             4

it considered and the reasons for its decision IN WRITING.  Such written
[order] DECISION 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
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.]  F.  The court shall determine the [guideline] duration of tempo-
rary maintenance by considering the length of the marriage.
  G. Temporary maintenance shall terminate  upon  the  issuance  of  the
[final  award] DETERMINATION of POST-DIVORCE maintenance or the death of
either party, whichever occurs first.
  [e.] H. (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)]  (C)  the  need  of  one  party  to  incur education or training
expenses;
  [(e)] (D) 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)] (E) the existence and duration of a pre-marital joint  household
or a pre-divorce separate household;
  [(h)]  (F)  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)]  (G)  the  availability  and  cost  of medical insurance for the
parties;
  [(j)] (H) 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)]  (I)  the need to pay for exceptional additional expenses for the
child or children NOT ALREADY CONSIDERED IN  DETERMINING  CHILD  SUPPORT
PURSUANT  TO THE CHILD SUPPORT STANDARDS ACT, including, but not limited
to, schooling, day care and medical treatment;
  [(m)] (J) the tax consequences to each party;
  (K) THE STANDARD OF LIVING  OF  THE  PARTIES  ESTABLISHED  DURING  THE
MARRIAGE;
  [(n)  marital property subject to distribution pursuant to subdivision
five of this part;

S. 7266                             5

  (o)] (L) the reduced or lost earning capacity of  the  [party  seeking
temporary  maintenance]  PAYEE 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)]  (M) any other factor which the court shall expressly find to be
just and proper.
  (2) Where the court  finds  that  the  [presumptive  award]  GUIDELINE
AMOUNT of temporary maintenance is unjust or inappropriate and the court
adjusts  the  [presumptive  award] GUIDELINE AMOUNT of temporary mainte-
nance pursuant to this paragraph, the court shall set forth, in a  writ-
ten  [order]  DECISION, the [amount of the unadjusted presumptive award]
GUIDELINE AMOUNT of temporary maintenance, the  factors  it  considered,
and  the  reasons that the court adjusted the [presumptive award] GUIDE-
LINE AMOUNT of temporary  maintenance.  Such  written  [order]  DECISION
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  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.]  I.  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.] J. 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.

S. 7266                             6

  [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.]
  K.  THE  COURT  MAY  ALLOCATE  THE  RESPONSIBILITIES OF THE RESPECTIVE
SPOUSES FOR THE FAMILY'S EXPENSES DURING THE PENDENCY OF THE PROCEEDING.
  L. THE TEMPORARY MAINTENANCE ORDER SHALL NOT PREJUDICE THE  RIGHTS  OF
EITHER PARTY REGARDING A POST-DIVORCE MAINTENANCE AWARD.
  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:
  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;

S. 7266                             7

  (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
  (20)  any other factor which the court shall expressly find to be just
and proper] SHALL MAKE ITS 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:
  (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, 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
  (B)  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 THREE HUNDRED THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY TWO  YEARS  THEREAFTER,
THE  INCOME  CAP  AMOUNT SHALL INCREASE BY THE SUM 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 PRIOR  TWO  YEARS  MULTIPLIED  BY  THE  CURRENT
PAYOR'S  ANNUAL  INCOME AMOUNT AND THEN ROUNDED TO THE NEAREST ONE THOU-
SAND 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.

S. 7266                             8

  (7)  "POST-DIVORCE  MAINTENANCE  GUIDELINE  OBLIGATION" SHALL MEAN THE
GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE  DURATION
OF POST-DIVORCE MAINTENANCE.
  (8)  "LENGTH  OF  MARRIAGE"  SHALL  MEAN  THE  PERIOD FROM THE DATE OF
MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
  (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.  WHERE 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  THIS  SUBDIVISION,  WHERE  THE
GUIDELINE  AMOUNT  OF  POST-DIVORCE MAINTENANCE WOULD REDUCE THE PAYOR'S
INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
AMOUNT OF POST-DIVORCE 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 REBUTTABLE  PRESUMPTION  THAT
NO POST-DIVORCE MAINTENANCE IS AWARDED.
  D.  WHERE  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
INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
PAYEE.
  (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 DECISION IN WRITING. SUCH WRITTEN DECISION MAY
NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
  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                       PERCENT OF THE LENGTH

S. 7266                             9

                                             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 ONE OF THIS PARA-
GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE  DEATH  OF  THE
PAYOR OR PAYEE OR UPON THE PAYEE'S VALID OR INVALID MARRIAGE.
  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 NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
  (D)  THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES MADE IN CONTEMPLATION OF A  MATRIMONIAL  ACTION  WITHOUT
FAIR CONSIDERATION;
  (E)  THE  EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
  (F) 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;
  (G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (H) 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;
  (I) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE  CHILD
OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
TO  THE  CHILD  SUPPORT  STANDARDS  ACT,  INCLUDING, BUT NOT LIMITED TO,
SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
  (J) THE TAX CONSEQUENCES TO EACH PARTY;
  (K) THE STANDARD OF LIVING  OF  THE  PARTIES  ESTABLISHED  DURING  THE
MARRIAGE;
  (L)  THE  REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
HAVING FOREGONE OR DELAYED EDUCATION,  TRAINING,  EMPLOYMENT  OR  CAREER
OPPORTUNITIES DURING THE MARRIAGE;
  (M) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY;
  (N)  THE  CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL  OF  THE
OTHER PARTY; AND
  (O)  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-

S. 7266                            10

VORCE  MAINTENANCE  GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE
COURT SHALL SET FORTH, IN A WRITTEN DECISION,  THE  UNADJUSTED  POST-DI-
VORCE  MAINTENANCE  GUIDELINE OBLIGATION, THE FACTORS IT CONSIDERED, AND
THE  REASONS  THAT THE COURT ADJUSTED THE POST-DIVORCE MAINTENANCE OBLI-
GATION. SUCH WRITTEN DECISION SHALL NOT BE WAIVED  BY  EITHER  PARTY  OR
COUNSEL.
  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  THE  CHAPTER OF THE LAWS OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS
SUBDIVISION 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 SUBDIVISION, AND THAT THE POST-DIVORCE
MAINTENANCE GUIDELINE OBLIGATION PROVIDED FOR THEREIN WOULD PRESUMPTIVE-
LY RESULT IN THE CORRECT AMOUNT  OF  POST-DIVORCE  MAINTENANCE.  IN  THE
EVENT  THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE
MAINTENANCE GUIDELINE OBLIGATION,  THE  AGREEMENT  OR  STIPULATION  MUST
SPECIFY  THE  AMOUNT  THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
GATION 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 POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION PROVIDED
SUCH AGREEMENTS OR STIPULATIONS  COMPLY  WITH  THE  PROVISIONS  OF  THIS
SUBDIVISION.  ANY COURT ORDER INCORPORATING A VALIDLY EXECUTED AGREEMENT
OR STIPULATION WHICH DEVIATES FROM THE POST-DIVORCE  MAINTENANCE  GUIDE-
LINE OBLIGATION SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION.
  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. SUCH ORDER MAY BE RETROACTIVELY MODIFIED
UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES 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 THE CHAPTER OF
THE LAWS OF  TWO  THOUSAND  FOURTEEN  WHICH  AMENDED  THIS  SUBDIVISION,
BROUGHT  PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN-
TENANCE SET FORTH IN 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 THE CHAPTER OF
THE LAWS OF  TWO  THOUSAND  FOURTEEN  WHICH  AMENDED  THIS  SUBDIVISION,
BROUGHT  PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN-
TENANCE SET FORTH IN PARAGRAPHS C, D AND E  OF  THIS  SUBDIVISION  SHALL
APPLY.
  M.  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 F OF THIS SUBDIVISION.

S. 7266                            11

  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]  PAYEE'S  inability to be self-supporting or a substantial
change in circumstance or termination of child support awarded  pursuant
to  section two hundred forty of this article, including financial hard-
ship. Where, after the effective date of this part, a separation  agree-
ment  remains  in  force  no  modification  of a prior order or judgment
incorporating the terms of said agreement shall be made  as  to  mainte-
nance  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 judgment for such period  of  time  and  under  such
circumstances  as  the  court  determines. The court shall not reduce or
annul any arrears of maintenance which have been reduced to final  judg-
ment  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  maintenance nunc pro tunc as of the date of
application based on newly discovered 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. Section 412 of the family court act, as amended by chapter 281 of
the laws of 1980, is amended to read as follows:
  S 412. Married person's duty to support spouse. 1. A married person is
chargeable with the support of his or her spouse and, [if  possessed  of
sufficient  means or able to earn such means, may be required to pay for
his or her support a fair and reasonable sum, as the  court  may  deter-
mine, having due regard to the circumstances of the respective parties.]
EXCEPT  WHERE  THE  PARTIES  HAVE  ENTERED INTO AN AGREEMENT PURSUANT TO
SECTION FOUR HUNDRED TWENTY-FIVE OF THIS ARTICLE PROVIDING FOR  SUPPORT,
THE  COURT  SHALL  MAKE  ITS  AWARD  FOR SPOUSAL SUPPORT PURSUANT TO THE
PROVISIONS OF THIS PART.
  2. FOR PURPOSES OF THIS SECTION, THE FOLLOWING  DEFINITIONS  SHALL  BE
USED:
  (A) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
  (B) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
  (C)  "INCOME" SHALL MEAN INCOME AS DEFINED IN THE CHILD SUPPORT STAND-
ARDS ACT AND CODIFIED IN SECTION  TWO  HUNDRED  FORTY  OF  THE  DOMESTIC
RELATIONS LAW AND SECTION FOUR HUNDRED THIRTEEN OF THIS PART.
  (D) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY  THIRTY-FIRST,  TWO THOUSAND SIXTEEN AND EVERY TWO YEARS THEREAFTER,
THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM 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  PRIOR  TWO  YEARS MULTIPLIED BY THE CURRENT
PAYOR'S ANNUAL INCOME AMOUNT AND THEN ROUNDED TO THE NEAREST  ONE  THOU-

S. 7266                            12

SAND  DOLLARS.  THE  OFFICE  OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
  (E)  "GUIDELINE  AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED
BY THE APPLICATION OF SUBDIVISION THREE OR FOUR OF THIS SECTION.
  (F) "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 THE DOMESTIC RELATIONS LAW  AND  SECTION  FOUR  HUNDRED
THIRTEEN OF THIS PART.
  3.  WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT  OF  SPOUSAL  SUPPORT  AS
FOLLOWS:
  (A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
  (B)  THE  COURT  SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
  (C) THE COURT SHALL  SUBTRACT  THE  PAYEE'S  INCOME  FROM  THE  AMOUNT
DERIVED FROM PARAGRAPH (B) OF THIS SUBDIVISION.
  (D)  THE  COURT  SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY PARA-
GRAPHS (A) AND (C) OF THIS SUBDIVISION.
  (E) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
MINED BY PARAGRAPH (D) OF THIS SUBDIVISION EXCEPT THAT,  IF  THE  AMOUNT
DETERMINED BY PARAGRAPH (D) OF THIS SUBDIVISION IS LESS THAN OR EQUAL TO
ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
  4.  WHERE  THE  PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS:
  (A) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH  IN  PARAGRAPHS
(A)  THROUGH  (D)  OF  SUBDIVISION  THREE  OF THIS SECTION FOR THE TOTAL
INCOMES OF PAYOR AND PAYEE.
  (B) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH  IN  PARAGRAPHS
(A)  THROUGH  (D) OF SUBDIVISION THREE OF THIS SECTION FOR THE INCOME OF
PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE.
  (C) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE EITHER:
  (1) THE CALCULATION DERIVED FROM PARAGRAPH (A) OF THIS SUBDIVISION; OR
  (2) THE AMOUNT DERIVED FROM PARAGRAPH (B) OF THIS SUBDIVISION PLUS  AN
AMOUNT  THAT  THE  COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
SET FORTH IN PARAGRAPH (A) OF SUBDIVISION SIX OF THIS SECTION.
  (D) IN ANY DECISION MADE PURSUANT TO SUBPARAGRAPH TWO OF PARAGRAPH (C)
OF THIS SUBDIVISION, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED
AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN  DECISION  MAY
NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
  5. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WHERE THE GUIDELINE
AMOUNT  OF  SPOUSAL  SUPPORT  WOULD  REDUCE THE PAYOR'S INCOME BELOW THE
SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE AMOUNT OF SPOUS-
AL SUPPORT 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  SPOUSAL  SUPPORT  IS
AWARDED.
  6.  (A)  THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
IN ACCORDANCE WITH SUBDIVISIONS THREE AND FOUR OF THIS  SECTION,  UNLESS
THE  COURT  FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT IS UNJUST
OR INAPPROPRIATE AND ADJUSTS THE GUIDELINE  AMOUNT  OF  SPOUSAL  SUPPORT
ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING FACTORS:
  (1) THE AGE AND HEALTH OF THE PARTIES;
  (2)  THE  PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING
THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
  (3) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;

S. 7266                            13

  (4) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING  TRANSFERS
OR  ENCUMBRANCES  MADE  IN CONTEMPLATION OF A SUPPORT PROCEEDING WITHOUT
FAIR CONSIDERATION;
  (5)  THE  EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-SUPPORT PROCEEDINGS SEPARATE HOUSEHOLD;
  (6) 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;
  (7) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (8) 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;
  (9) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE  CHILD
OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
TO  THE  CHILD  SUPPORT  STANDARDS  ACT,  INCLUDING, BUT NOT LIMITED TO,
SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
  (10) THE TAX CONSEQUENCES TO EACH PARTY;
  (11) THE STANDARD OF LIVING OF  THE  PARTIES  ESTABLISHED  DURING  THE
MARRIAGE;
  (12)  THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
HAVING FOREGONE OR DELAYED EDUCATION,  TRAINING,  EMPLOYMENT  OR  CAREER
OPPORTUNITIES DURING THE MARRIAGE;
  (13)  THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL  OF  THE
OTHER PARTY; AND
  (14)  ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
  (B) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE GUIDELINE AMOUNT OF
SPOUSAL SUPPORT PURSUANT TO THIS SUBDIVISION, THE COURT SHALL SET FORTH,
IN A WRITTEN DECISION, THE GUIDELINE  AMOUNT  OF  SPOUSAL  SUPPORT,  THE
FACTORS  IT  CONSIDERED,  AND  THE  REASONS  THAT THE COURT ADJUSTED THE
GUIDELINE AMOUNT OF SPOUSAL SUPPORT. SUCH WRITTEN DECISION SHALL NOT  BE
WAIVED BY EITHER PARTY OR COUNSEL.
  (C)  WHERE  EITHER  OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL
NOT ENTER A SPOUSAL SUPPORT ORDER UNLESS THE COURT INFORMS THE  UNREPRE-
SENTED PARTY OR PARTIES OF THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT.
  7.  WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE  COURT  SHALL  ORDER
THE SPOUSAL SUPPORT AWARD BASED UPON THE NEEDS OF THE PAYEE OR THE STAN-
DARD  OF  LIVING  OF  THE  PARTIES  PRIOR TO COMMENCEMENT OF THE SPOUSAL
SUPPORT PROCEEDING, WHICHEVER IS GREATER.   SUCH ORDER MAY  BE  RETROAC-
TIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON
A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
  8. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF SPOUSAL
SUPPORT  EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS
OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO
THIS ARTICLE, THE SPOUSAL SUPPORT GUIDELINES SET FORTH IN  THIS  SECTION
SHALL  NOT  CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANTING MODIFICATION
OF SUCH SPOUSAL SUPPORT ORDER.
  S 5. Paragraph a of subdivision 1 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. 7266                            14

  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 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]  PAYEE'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  6.  Subparagraph  7  of  paragraph  d of subdivision 5 of part B of
section 236 of the domestic relations law, as amended by chapter 281  of
the  laws  of 1980 and as renumbered by chapter 229 of the laws of 2009,
is amended to read as follows:
  (7) any equitable  claim  to,  interest  in,  or  direct  or  indirect
contribution  made  to  the  acquisition of such marital property by the
party not having title, including  joint  efforts  or  expenditures  and
contributions and services as a spouse, parent, wage earner and homemak-
er,  and to the career or career potential of the other party. THE COURT
SHALL NOT CONSIDER AS MARITAL PROPERTY SUBJECT TO DISTRIBUTION THE VALUE
OF A SPOUSE'S ENHANCED EARNING CAPACITY ARISING FROM A LICENSE,  DEGREE,
CELEBRITY  GOODWILL,  OR  CAREER ENHANCEMENT. HOWEVER, IN ARRIVING AT AN
EQUITABLE DIVISION OF MARITAL PROPERTY, THE  COURT  SHALL  CONSIDER  THE
DIRECT  OR INDIRECT CONTRIBUTIONS TO THE DEVELOPMENT DURING THE MARRIAGE
OF THE ENHANCED EARNING CAPACITY OF THE OTHER SPOUSE;
  S 7. Section 248 of the domestic relations law, as amended by  chapter
604 of the laws of 1975, is amended to read as follows:
  S  248.  Modification  of  judgment  or order in action for divorce or
annulment. Where an action for divorce or for annulment or for a  decla-
ration  of  the  nullity  of  a void marriage is brought by a husband or
wife, and a final judgment of divorce or a final judgment annulling  the
marriage or declaring its nullity has been rendered, the court, by order
upon  the  application of the [husband] PAYOR on notice, and on proof of
the marriage of the [wife] PAYEE after such final judgment, must  modify
such  final judgment and any orders made with respect thereto by annull-
ing the provisions of such final judgment or orders, or of both, direct-
ing payments of money for the support of the [wife] PAYEE.  The court in
its discretion upon application of the [husband] PAYOR on  notice,  upon
proof  that  the  [wife]  PAYEE  is habitually living with another [man]
PERSON and holding HIMSELF OR herself out as [his wife]  THE  SPOUSE  OF
SUCH  OTHER PERSON, although not married to such [man] OTHER PERSON, may
modify such final judgment and any orders made with respect  thereto  by
annulling  the  provisions  of such final judgment or orders or of both,
directing payment of money for the support of such [wife] PAYEE.
  S 8. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.

co-Sponsors

2013-S7266A (ACTIVE) - Details

See Assembly Version of this Bill:: A9606
Current Committee:: Senate Rules
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§236 & 248, Dom Rel L; amd §412, Fam Ct Act

2013-S7266A (ACTIVE) - Summary

Provides for the duration and amount payable for temporary and post-divorce maintenance, and spousal support.

2013-S7266A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7266A

TITLE OF BILL:  An act to amend the domestic relations law, in
relation to the duration and amount of maintenance; and to amend the
family court act, in relation to spousal support

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; and to update spousal support
awards law to mirror the revised provisions for temporary 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 one guideline amount where the court finds the
guideline amount is unjust or inappropriate. This section also reduces
the income cap from $500,000 to $200,000.

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 to provide, in
determining post-divorce maintenance, provisions that track the

provisions for determining temporary maintenance. This section also
provides for the guidelines and 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, and actual
retirement of the payor if the retirement results in substantial
change in financial circumstances.

Section 4. Section 412 of the Family Court Act, as amended by chapter
231 of the laws of 1960, is amended to mirror the provisions of
temporary maintenance set forth in subdivision 5-a of Part B of
section 236 of the DRL.

Section 5. Paragraph a of subdivision 1 of part B of section 236 of
the DRL, as amended by chapter 371 of the laws of 2010, is amended to
replace "recipient" of maintenance to "payee."

Section 6. Subparagraph 7 of paragraph d of subdivision 5 of Part B of
section 236 of the DRL, as amended by chapter 281 of the laws of 1980
and as renumbered by chapter 229 of the laws of 2009, is amended to
provide that in determining an equitable disposition of property
pursuant to subdivision 5(c) of Part B of section 236 of the DRL, the
court shall not consider as marital property subject to distribution
the value of a spouse's enhanced earning capacity arising from a
license, degree, celebrity goodwill, or career enhancement. However,
the court, in arriving at an equitable division of marital property,
shall consider the direct or indirect contributions, to the


development during the marriage of the enhanced earning capacity of
the other spouse.

Section 7. Section 248 of the DRL is amended to replace language
referencing "husband" and "wife" to "spouse," "payor," and "payee."

Section 8. Effective Date.

JUSTIFICATION: This bill completes reforms of New York divorce laws
that started in 2010 with the adoption of standards for temporary
maintenance similar to the standards used for child support. The bill
makes several changes to current law. First, it amends the provisions
for temporary maintenance enacted in 2010 by lowering the provision's
income cap and by making technical and clarifying amendments,
including restating in simpler language the method for calculating the
temporary maintenance guideline amount. Second, the bill adopts
maintenance standards for post-divorce maintenance awards similar to
those for temporary maintenance awards. Third, the bill provides
increased guidance to courts hearing motions to modify maintenance
awards by clarifying that a substantial change in circumstances
includes financial hardship, remarriage of the payee if remarriage
results in a substantial change in financial circumstances, and actual
retirement of the payor if retirement results in a substantial change
in financial circumstances. Fourth, the bill extends the concept of
guidelines to the Family Court Act's provisions for spousal support.
Fifth, within the context of comprehensive legislation providing for
post-divorce maintenance guidelines, the bill eliminates increased
earning capacity from consideration in the distribution of marital
assets. And, sixth, the bill conforms other portions of the Domestic
Relations Law to make them consistent with the bill's provisions for
post-divorce maintenance.

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 base 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
legis- lation, 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 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.

The 2010 temporary maintenance law provided not just consistency 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, 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 middle income parties report that
clients, who in spite of great need would have been unable to
undertake the litigation necessary for a maintenance award under the
vague provisions of the previous law, have been receiving temporary
maintenance as a result of the law enacted in 2010. These awards are
the result of judicial rulings under the new law and, equally
importantly, of settlements informed by clear standards allowing
lawyers to predict litigation outcomes. Courts have taken advantage of
the provisions providing flexibility and have adjusted awards when
necessary for equity in particular cases. Dozens of decisions have
been published.

The 2010 law also directed the New York State Law Revision Commission
(LRC) to, among other things "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 and their administration in achieving the
state's policy goals and objectives of ensure that the economic
consequences or a divorce are fairly and equitably shared by the
divorcing couple." (Sec. 3 of Chapter 371 of the Laws of 2010.)

The LRC issued its final report on May 15, 2013 of its findings,
conclusions and recommendations (the LRC Report). The LRC Report,
among other things, recommended that the mathematical formula set
forth in the 2010 law for the calculation of the guideline amount of
temporary maintenance be continued and that a mathematical formula be
similarly used to calculate the guideline amount of post-divorce
maintenance, with consideration by the court of a set of factors to
determine whether the guideline amount of post-divorce maintenance
should be increased where the parties' income exceeds the income cap.
The LRC also recommended that the provisions providing for spousal
support in Family Court proceedings be amended to mirror the temporary
maintenance law, revised as recommended by the LRC.

This bill incorporates many of the recommendations set forth in the
LRC Report.


Section one of this bill makes small adjustments that refine, clarify,
and streamline the current temporary maintenance standards law. The
provisions for calculating the formula amount have been simplified.
Factors for judges to consider when adjusting awards have been
condensed and clarified, and factors inapplicable to temporary
maintenance removed. Provisions confirming judicial practice,
concerning allocation of responsibility for family expenses and the
independence of decisions on temporary and cost-divorce maintenance,
have been added. The bill retains provisions for courts to consider
the length of marriage in setting the duration of maintenance so that
judges hearing cases involving short-term marriage may terminate
maintenance before the divorce is final. And, last, the bill lowers
the income cap used in temporary maintenance provisions from $500,000
to $200,000. The $200,000 cap takes into account the high cost of
litigating a right to maintenance without the kind of simplified
method provided for families by maintenance guidelines. This cost is
sufficiently high so that only the wealthiest divorcing spouses can
afford to litigate maintenance.

Section two of this bill extends the benefits of the temporary
maintenance provisions to post-divorce maintenance awards.
Post-divorce maintenance awards remain the "wild card" in divorce
litigation. Awards are still inconsistent and unpredictable, and
lengthy, expensive litigation is still necessary to achieve equitable
results. Using guidelines based on a formula with flexibility for
adjustments up and down for 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 post-divorce maintenance provisions are the provisions
on duration. Temporary maintenance usually lasts until a legal case
concludes with a final judgment of divorce, except where courts
terminate temporary maintenance prior to the divorce becoming final
based on consideration of the length of marriage as mentioned above.
Post-divorce maintenance needs its own clear end point, and this bill
proscribes a duration calculated as a percent of the length of the
marriage. Like the recommendations on duration in the AAML Commission
and the ALI Principles, the longer the marriage, the longer the time
post-divorce 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 that a substantial change in
circumstances includes remarriage of the payee spouse but only when
the remarriage results in a substantial change in the payee's
financial circumstances, and the actual retirement of the payer but
only when retirement results in a substantial change in the payor's
financial circumstances, in addition to financial hardship. While
remarriage does not necessarily improve financial status, remarriage
in some cases may better significantly the financial standing of the
payee spouse. When it does, this section allows a judge to modify an
earlier order. Just as remarriage does not necessarily improve the
financial status of a payee spouse, retirement does not necessarily
worsen the financial outlook 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 by examining the changed financial
status upon actual retirement.

Section four of the bill adopts the guideline approach to spousal
support proceedings brought in Family Court. The bill's spousal
support provisions closely track provisions for temporary maintenance
and make available to vulnerable spouses the same kind consistent,
predictable results that maintenance guidelines provide to divorcing
couples.

Section six amends the Domestic Relations Law to eliminate a form of
marital property, enhanced earning capacity, recognized by the Court
of Appeals in O'Brien v O'Brien, 66 NY 2d 576 (1985). Two essential
elements of the post-divorce guideline provisions of this bill make
possible the elimination of the treatment of enhanced earning capacity
as marital assets. First, the formula used in the bill's post-divorce
maintenance provisions is based on a rough assessment of future
earnings, i.e. current earning capacity, while provisions for
adjusting the guideline obligation allow judges to fine-tune the
initial assessments about what spouses are likely to earn
post-divorce. Second, the provisions for post-marital maintenance in
this bill, like obligations created in equitable distribution
provisions, allow for payments regardless of whether or not the
recipient remarries. Only if maintenance is calculated through use of
guidelines for both amount and duration and only if maintenance
payments may continue after remarriage can maintenance substitute for
treating enhanced earning capacity as a marital asset. To eliminate
enhanced earning capacity as a marital asset without these critical
reforms to our maintenance laws would be a great in justice to spouses
who have sacrificed their education and/or careers for the benefit of
the marital partnership.

Section seven amends the Domestic Relation Law relating to
applications made to the court by a spouse when their former spouse is
cohabitating with another person and is holding themselves out as a
spouse of that person. This section changes the language from "wife"
and "husband" to "spouse." Currently, the law assumes the wife is the
party cohabitating and being paid maintenance, and the husband is
making the application to the court for a change in maintenance paid.

LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  None.

EFFECTIVE DATE: This act shall take effect on the sixtieth day after
it shall become a law.

2013-S7266A (ACTIVE) - Bill Text download pdf

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

                                 7266--A
    Cal. No. 670

                            I N  S E N A T E

                               May 8, 2014
                               ___________

Introduced  by  Sens.  BONACIC, HASSELL-THOMPSON, PARKER, SAVINO -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee  on  Judiciary  --  reported  favorably from said committee,
  ordered to first and  second  report,  ordered  to  a  third  reading,
  amended  and  ordered  reprinted,  retaining its place in the order of
  third reading

AN ACT to amend the domestic relations law, in relation to the  duration
  and  amount  of  maintenance;  and  to  amend the family court act, in
  relation to spousal support

  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)  "Income  cap"  shall  mean up to and including [five] TWO hundred
thousand dollars of the payor's annual income; provided, however, begin-
ning January thirty-first, two thousand [twelve] SIXTEEN and  every  two

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD15051-02-4

S. 7266--A                          2

years  thereafter, the [payor's annual] income CAP amount shall increase
by the [product] SUM 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
PRIOR two [year period] YEARS MULTIPLIED BY THE CURRENT  PAYOR'S  ANNUAL
INCOME  AMOUNT AND THEN rounded to the 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]
DOLLAR AMOUNT 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)] "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;

S. 7266--A                          3

  (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
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)]  WHERE  THE  PAYOR'S  INCOME IS LOWER THAN OR EQUAL TO THE INCOME
CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY 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 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.  WHERE  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
INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
PAYEE.
  (3) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE EITHER:
  (A)  THE  CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
OR

S. 7266--A                          4

  (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 H 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 decision IN WRITING.  Such written
[order] DECISION 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
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.]  F.  The court shall determine the [guideline] duration of tempo-
rary maintenance by considering the length of the marriage.
  G. Temporary maintenance shall terminate  upon  the  issuance  of  the
[final  award] DETERMINATION of POST-DIVORCE maintenance or the death of
either party, whichever occurs first.
  [e.] H. (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,
WHICH  FINDING  SHALL  BE  BASED  UPON  CONSIDERATION  OF  THE FOLLOWING
FACTORS, and adjusts the [presumptive award] GUIDELINE AMOUNT of  tempo-
rary  maintenance  accordingly  based  upon  SUCH  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)] (C) the need  of  one  party  to  incur  education  or  training
expenses;
  [(e)] (D) 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)]  (E) the existence and duration of a pre-marital joint household
or a pre-divorce separate household;
  [(h)] (F) 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)] (G) the availability and  cost  of  medical  insurance  for  the
parties;
  [(j)]  (H)  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)] (I) the need to pay for exceptional additional expenses  for  the
child  or  children  NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT

S. 7266--A                          5

PURSUANT TO THE CHILD SUPPORT STANDARDS ACT, including, but not  limited
to, schooling, day care and medical treatment;
  [(m)] (J) the tax consequences to each party;
  (K)  THE  STANDARD  OF  LIVING  OF  THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
  [(n) marital property subject to distribution pursuant to  subdivision
five of this part;
  (o)]  (L)  the  reduced or lost earning capacity of the [party seeking
temporary maintenance] PAYEE 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)] (M) any other factor which the court shall expressly find to  be
just and proper.
  (2)  Where  the  court  finds  that  the [presumptive award] GUIDELINE
AMOUNT of temporary maintenance is unjust or inappropriate and the court
adjusts the [presumptive award] GUIDELINE AMOUNT  of  temporary  mainte-
nance  pursuant to this paragraph, the court shall set forth, in a writ-
ten [order] DECISION, the [amount of the unadjusted  presumptive  award]
GUIDELINE  AMOUNT  of  temporary maintenance, the factors it considered,
and the reasons that the court adjusted the [presumptive  award]  GUIDE-
LINE  AMOUNT  of  temporary  maintenance.  Such written [order] DECISION
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 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.] I. 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

S. 7266--A                          6

retroactively modified upward without a showing  of  change  in  circum-
stances upon a showing of newly discovered or obtained evidence.
  [h.]  J.  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.]
  K. THE COURT MAY  ALLOCATE  THE  RESPONSIBILITIES  OF  THE  RESPECTIVE
SPOUSES FOR THE FAMILY'S EXPENSES DURING THE PENDENCY OF THE PROCEEDING.
  L.  THE  TEMPORARY MAINTENANCE ORDER SHALL NOT PREJUDICE THE RIGHTS OF
EITHER PARTY REGARDING A POST-DIVORCE MAINTENANCE AWARD.
  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:
  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;

S. 7266--A                          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;
  (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
  (20)  any other factor which the court shall expressly find to be just
and proper] SHALL MAKE ITS 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:
  (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, 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
  (B)  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 TWO  HUNDRED  THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY  THIRTY-FIRST,  TWO THOUSAND SIXTEEN AND EVERY TWO YEARS THEREAFTER,
THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM 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  PRIOR  TWO  YEARS MULTIPLIED BY THE CURRENT
PAYOR'S ANNUAL INCOME AMOUNT AND THEN ROUNDED TO THE NEAREST  ONE  THOU-

S. 7266--A                          8

SAND  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)  "LENGTH  OF  MARRIAGE"  SHALL  MEAN  THE  PERIOD FROM THE DATE OF
MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
  (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.  WHERE 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  THIS  SUBDIVISION,  WHERE  THE
GUIDELINE  AMOUNT  OF  POST-DIVORCE MAINTENANCE WOULD REDUCE THE PAYOR'S
INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
AMOUNT OF POST-DIVORCE 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 REBUTTABLE  PRESUMPTION  THAT
NO POST-DIVORCE MAINTENANCE IS AWARDED.
  D.  WHERE  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
INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
PAYEE.
  (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.

S. 7266--A                          9

  (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 DECISION IN WRITING. SUCH WRITTEN DECISION MAY
NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
  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                       PERCENT OF THE LENGTH
                                             OF THE MARRIAGE FOR WHICH
                                             MAINTENANCE WILL BE PAYABLE
0 UP TO AND INCLUDING 5 YEARS                      20%
MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS         30%
MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS        40%
MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS       50%
MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS       60%
MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS       70%
MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS       80%
MORE THAN 20, UP TO AND INCLUDING 25 YEARS         90%
MORE THAN 25 YEARS                             NONDURATIONAL
  (2)  NOTWITHSTANDING  THE PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARA-
GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE  DEATH  OF  THE
PAYOR OR PAYEE OR UPON THE PAYEE'S VALID OR INVALID MARRIAGE.
  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, WHICH FINDING  SHALL  BE  BASED  UPON
CONSIDERATION  OF  THE  FOLLOWING  FACTORS, AND ADJUSTS THE POST-DIVORCE
MAINTENANCE GUIDELINE OBLIGATION ACCORDINGLY BASED UPON  SUCH  CONSIDER-
ATION:
  (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 NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
  (D) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING  TRANSFERS
OR  ENCUMBRANCES  MADE  IN CONTEMPLATION OF A MATRIMONIAL ACTION WITHOUT
FAIR CONSIDERATION;
  (E) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD  OR  A
PRE-DIVORCE SEPARATE HOUSEHOLD;
  (F)  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;
  (G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (H)  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;
  (I)  THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD
OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
TO THE CHILD SUPPORT STANDARDS  ACT,  INCLUDING,  BUT  NOT  LIMITED  TO,
SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
  (J) THE TAX CONSEQUENCES TO EACH PARTY;
  (K)  THE  STANDARD  OF  LIVING  OF  THE PARTIES ESTABLISHED DURING THE
MARRIAGE;

S. 7266--A                         10

  (L) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A  RESULT  OF
HAVING  FOREGONE  OR  DELAYED  EDUCATION, TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE;
  (M) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY;
  (N)  THE  CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL  OF  THE
OTHER PARTY;
  (O)  ACTUAL  RETIREMENT  OF  THE  PAYOR IF THE RETIREMENT RESULTS IN A
SUBSTANTIAL CHANGE IN FINANCIAL CIRCUMSTANCES; AND
  (P) 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 DECISION, THE UNADJUSTED POST-DI-
VORCE MAINTENANCE GUIDELINE OBLIGATION, THE FACTORS IT  CONSIDERED,  AND
THE  REASONS  THAT THE COURT ADJUSTED THE POST-DIVORCE MAINTENANCE OBLI-
GATION. SUCH WRITTEN DECISION SHALL NOT BE WAIVED  BY  EITHER  PARTY  OR
COUNSEL.
  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  THE  CHAPTER OF THE LAWS OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS
SUBDIVISION 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 SUBDIVISION, AND THAT THE POST-DIVORCE
MAINTENANCE GUIDELINE OBLIGATION PROVIDED FOR THEREIN WOULD PRESUMPTIVE-
LY RESULT IN THE CORRECT AMOUNT  OF  POST-DIVORCE  MAINTENANCE.  IN  THE
EVENT  THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE
MAINTENANCE GUIDELINE OBLIGATION,  THE  AGREEMENT  OR  STIPULATION  MUST
SPECIFY  THE  AMOUNT  THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
GATION 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 POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION PROVIDED
SUCH AGREEMENTS OR STIPULATIONS  COMPLY  WITH  THE  PROVISIONS  OF  THIS
SUBDIVISION.  ANY COURT ORDER INCORPORATING A VALIDLY EXECUTED AGREEMENT
OR STIPULATION WHICH DEVIATES FROM THE POST-DIVORCE  MAINTENANCE  GUIDE-
LINE OBLIGATION SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION.
  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. SUCH ORDER MAY BE RETROACTIVELY MODIFIED
UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES 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 THE CHAPTER OF
THE LAWS OF  TWO  THOUSAND  FOURTEEN  WHICH  AMENDED  THIS  SUBDIVISION,

S. 7266--A                         11

BROUGHT  PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN-
TENANCE SET FORTH IN 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 THE CHAPTER OF
THE LAWS OF  TWO  THOUSAND  FOURTEEN  WHICH  AMENDED  THIS  SUBDIVISION,
BROUGHT  PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN-
TENANCE SET FORTH IN PARAGRAPHS C, D AND E  OF  THIS  SUBDIVISION  SHALL
APPLY.
  M.  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 F OF THIS SUBDIVISION.
  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] PAYEE'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, OR A  SUBSTANTIAL
CHANGE  IN  CIRCUMSTANCE including financial hardship AND ACTUAL RETIRE-
MENT OF THE PAYOR IF THE RETIREMENT RESULTS IN A SUBSTANTIAL  CHANGE  IN
FINANCIAL CIRCUMSTANCES. Where, after the effective 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 judgment for such period of  time  and  under
such  circumstances  as the court determines. The court shall not reduce
or annul any arrears of maintenance 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  maintenance nunc pro tunc as of the date of
application based on newly discovered 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. Section 412 of the family court act, as amended by chapter 281 of
the laws of 1980, is amended to read as follows:
  S 412. Married person's duty to support spouse. 1. A married person is
chargeable with the support of his or her spouse and, [if  possessed  of
sufficient  means or able to earn such means, may be required to pay for
his or her support a fair and reasonable sum, as the  court  may  deter-
mine, having due regard to the circumstances of the respective parties.]
EXCEPT  WHERE  THE  PARTIES  HAVE  ENTERED INTO AN AGREEMENT PURSUANT TO
SECTION FOUR HUNDRED TWENTY-FIVE OF THIS ARTICLE PROVIDING FOR  SUPPORT,
THE  COURT  SHALL  MAKE  ITS  AWARD  FOR SPOUSAL SUPPORT PURSUANT TO THE
PROVISIONS OF THIS PART.

S. 7266--A                         12

  2. FOR PURPOSES OF THIS SECTION, THE FOLLOWING  DEFINITIONS  SHALL  BE
USED:
  (A) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
  (B) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
  (C)  "INCOME" SHALL MEAN INCOME AS DEFINED IN THE CHILD SUPPORT STAND-
ARDS ACT AND CODIFIED IN SECTION  TWO  HUNDRED  FORTY  OF  THE  DOMESTIC
RELATIONS LAW AND SECTION FOUR HUNDRED THIRTEEN OF THIS PART.
  (D)  "INCOME  CAP" SHALL MEAN UP TO AND INCLUDING TWO HUNDRED THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY TWO  YEARS  THEREAFTER,
THE  INCOME  CAP  AMOUNT SHALL INCREASE BY THE SUM 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 PRIOR  TWO  YEARS  MULTIPLIED  BY  THE  CURRENT
PAYOR'S  ANNUAL  INCOME AMOUNT AND THEN ROUNDED TO THE NEAREST ONE THOU-
SAND DOLLARS. THE OFFICE OF COURT  ADMINISTRATION  SHALL  DETERMINE  AND
PUBLISH THE INCOME CAP.
  (E)  "GUIDELINE  AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED
BY THE APPLICATION OF SUBDIVISION THREE OR FOUR OF THIS SECTION.
  (F) "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 THE DOMESTIC RELATIONS LAW  AND  SECTION  FOUR  HUNDRED
THIRTEEN OF THIS PART.
  3.  WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT  OF  SPOUSAL  SUPPORT  AS
FOLLOWS:
  (A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
  (B)  THE  COURT  SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
  (C) THE COURT SHALL  SUBTRACT  THE  PAYEE'S  INCOME  FROM  THE  AMOUNT
DERIVED FROM PARAGRAPH (B) OF THIS SUBDIVISION.
  (D)  THE  COURT  SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY PARA-
GRAPHS (A) AND (C) OF THIS SUBDIVISION.
  (E) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
MINED BY PARAGRAPH (D) OF THIS SUBDIVISION EXCEPT THAT,  IF  THE  AMOUNT
DETERMINED BY PARAGRAPH (D) OF THIS SUBDIVISION IS LESS THAN OR EQUAL TO
ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
  4.  WHERE  THE  PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS:
  (A) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH  IN  PARAGRAPHS
(A)  THROUGH  (D)  OF  SUBDIVISION  THREE  OF THIS SECTION FOR THE TOTAL
INCOMES OF PAYOR AND PAYEE.
  (B) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH  IN  PARAGRAPHS
(A)  THROUGH  (D) OF SUBDIVISION THREE OF THIS SECTION FOR THE INCOME OF
PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE.
  (C) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE EITHER:
  (1) THE CALCULATION DERIVED FROM PARAGRAPH (A) OF THIS SUBDIVISION; OR
  (2) THE AMOUNT DERIVED FROM PARAGRAPH (B) OF THIS SUBDIVISION PLUS  AN
AMOUNT  THAT  THE  COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
SET FORTH IN PARAGRAPH (A) OF SUBDIVISION SIX OF THIS SECTION.
  (D) IN ANY DECISION MADE PURSUANT TO SUBPARAGRAPH TWO OF PARAGRAPH (C)
OF THIS SUBDIVISION, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED
AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN  DECISION  MAY
NOT BE WAIVED BY EITHER PARTY OR COUNSEL.

S. 7266--A                         13

  5. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WHERE THE GUIDELINE
AMOUNT  OF  SPOUSAL  SUPPORT  WOULD  REDUCE THE PAYOR'S INCOME BELOW THE
SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE AMOUNT OF SPOUS-
AL SUPPORT 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  SPOUSAL  SUPPORT  IS
AWARDED.
  6.  (A)  THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
IN ACCORDANCE WITH SUBDIVISIONS THREE AND FOUR OF THIS  SECTION,  UNLESS
THE  COURT  FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT IS UNJUST
OR INAPPROPRIATE, WHICH FINDING SHALL BE BASED UPON CONSIDERATION OF THE
FOLLOWING FACTORS, AND ADJUSTS THE GUIDELINE AMOUNT OF  SPOUSAL  SUPPORT
ACCORDINGLY BASED UPON CONSIDERATION:
  (1) THE AGE AND HEALTH OF THE PARTIES;
  (2)  THE  PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING
THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
  (3) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
  (4) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING  TRANSFERS
OR  ENCUMBRANCES  MADE  IN CONTEMPLATION OF A SUPPORT PROCEEDING WITHOUT
FAIR CONSIDERATION;
  (5) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD  OR  A
PRE-SUPPORT PROCEEDINGS SEPARATE HOUSEHOLD;
  (6)  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;
  (7) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (8)  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;
  (9)  THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD
OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
TO THE CHILD SUPPORT STANDARDS  ACT,  INCLUDING,  BUT  NOT  LIMITED  TO,
SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
  (10) THE TAX CONSEQUENCES TO EACH PARTY;
  (11)  THE  STANDARD  OF  LIVING  OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
  (12) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT  OF
HAVING  FOREGONE  OR  DELAYED  EDUCATION, TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE;
  (13) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE,  PARENT,
WAGE  EARNER  AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE
OTHER PARTY; AND
  (14) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE  JUST
AND PROPER.
  (B) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE GUIDELINE AMOUNT OF
SPOUSAL SUPPORT PURSUANT TO THIS SUBDIVISION, THE COURT SHALL SET FORTH,
IN  A  WRITTEN  DECISION,  THE  GUIDELINE AMOUNT OF SPOUSAL SUPPORT, THE
FACTORS IT CONSIDERED, AND THE  REASONS  THAT  THE  COURT  ADJUSTED  THE
GUIDELINE  AMOUNT OF SPOUSAL SUPPORT. SUCH WRITTEN DECISION SHALL NOT BE
WAIVED BY EITHER PARTY OR COUNSEL.
  (C) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED,  THE  COURT  SHALL
NOT  ENTER A SPOUSAL SUPPORT ORDER UNLESS THE COURT INFORMS THE UNREPRE-
SENTED PARTY OR PARTIES OF THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT.

S. 7266--A                         14

  7. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE  PRESENTED
WITH  INSUFFICIENT  EVIDENCE  TO DETERMINE INCOME, THE COURT SHALL ORDER
THE SPOUSAL SUPPORT AWARD BASED UPON THE NEEDS OF THE PAYEE OR THE STAN-
DARD OF LIVING OF THE PARTIES  PRIOR  TO  COMMENCEMENT  OF  THE  SPOUSAL
SUPPORT  PROCEEDING,  WHICHEVER IS GREATER.   SUCH ORDER MAY BE RETROAC-
TIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON
A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
  8. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF SPOUSAL
SUPPORT EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE  LAWS
OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO
THIS  ARTICLE,  THE SPOUSAL SUPPORT GUIDELINES SET FORTH IN THIS SECTION
SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES  WARRANTING  MODIFICATION
OF SUCH SPOUSAL SUPPORT ORDER.
  S  5.  Paragraph  a  of  subdivision 1 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:
  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 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]  PAYEE'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 6. Subparagraph 7 of paragraph d of  subdivision  5  of  part  B  of
section  236 of the domestic relations law, as amended by chapter 281 of
the laws of 1980 and as renumbered by chapter 229 of the laws  of  2009,
is amended to read as follows:
  (7)  any  equitable  claim  to,  interest  in,  or  direct or indirect
contribution made to the acquisition of such  marital  property  by  the
party  not  having  title,  including  joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and homemak-
er, and to the career or career potential of the other party. THE  COURT
SHALL NOT CONSIDER AS MARITAL PROPERTY SUBJECT TO DISTRIBUTION THE VALUE
OF  A SPOUSE'S ENHANCED EARNING CAPACITY ARISING FROM A LICENSE, DEGREE,
CELEBRITY GOODWILL, OR CAREER ENHANCEMENT. HOWEVER, IN  ARRIVING  AT  AN
EQUITABLE  DIVISION  OF  MARITAL  PROPERTY, THE COURT SHALL CONSIDER THE
DIRECT OR INDIRECT CONTRIBUTIONS TO THE DEVELOPMENT DURING THE  MARRIAGE
OF THE ENHANCED EARNING CAPACITY OF THE OTHER SPOUSE;
  S  7. Section 248 of the domestic relations law, as amended by chapter
604 of the laws of 1975, is amended to read as follows:
  S 248. Modification of judgment or order  in  action  for  divorce  or
annulment.  Where an action for divorce or for annulment or for a decla-
ration of the nullity of a void marriage is  brought  by  a  husband  or
wife,  and a final judgment of divorce or a final judgment annulling the
marriage or declaring its nullity has been rendered, the court, by order
upon the application of the [husband] PAYOR on notice, and on  proof  of
the  marriage of the [wife] PAYEE after such final judgment, must modify
such final judgment and any orders made with respect thereto by  annull-
ing the provisions of such final judgment or orders, or of both, direct-
ing payments of money for the support of the [wife] PAYEE.  The court in
its  discretion  upon application of the [husband] PAYOR on notice, upon
proof that the [wife] PAYEE is  habitually  living  with  another  [man]
PERSON  and  holding  HIMSELF OR herself out as [his wife] THE SPOUSE OF
SUCH OTHER PERSON, although not married to such [man] OTHER PERSON,  may

S. 7266--A                         15

modify  such  final judgment and any orders made with respect thereto by
annulling the provisions of such final judgment or orders  or  of  both,
directing payment of money for the support of such [wife] PAYEE.
  S  8.  This  act  shall take effect on the sixtieth day after it shall
have become a law.

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Senate Bill S7266A

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Sponsored By

John J. Bonacic

Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

co-Sponsors

Ruth Hassell-Thompson

Kevin S. Parker

Diane J. Savino

2013-S7266 - Details

2013-S7266 - Summary

2013-S7266 - Sponsor Memo

2013-S7266 - Bill Text download pdf

co-Sponsors

Ruth Hassell-Thompson

Kevin S. Parker

Diane J. Savino

2013-S7266A (ACTIVE) - Details

2013-S7266A (ACTIVE) - Summary

2013-S7266A (ACTIVE) - Sponsor Memo

2013-S7266A (ACTIVE) - Bill Text download pdf

Comments