assembly Bill A6728A

2013-2014 Legislative Session

Relates to temporary maintenance awards and maintenance obligations; repealer

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Archive: Last Bill Status - STRICKEN


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 02, 2014 enacting clause stricken
Jan 08, 2014 referred to judiciary
Jun 17, 2013 print number 6728b
amend and recommit to codes
Jun 12, 2013 reported referred to codes
Jun 10, 2013 print number 6728a
amend (t) and recommit to judiciary
Apr 17, 2013 referred to judiciary

Bill Amendments

Original
A
B (Active)
Original
A
B (Active)

Co-Sponsors

A6728 - Bill Details

Current Committee:
Law Section:
Domestic Relations Law
Laws Affected:
Amd §236, rpld §248, Dom Rel L; amd §412, Fam Ct Act

A6728 - Bill Texts

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Relates to modification of temporary maintenance awards and maintenance obligations.

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

                                  6728

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             April 17, 2013
                               ___________

Introduced by M. of A. PAULIN -- read once and referred to the Committee
  on Judiciary

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

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

  Section 1. Subdivision 5-a of part B of section 236  of  the  domestic
relations  law,  as added by chapter 371 of the laws of 2010, is amended
to read as follows:
  5-a. Temporary maintenance awards. a. Except where  the  parties  have
entered  into  an  agreement  pursuant to subdivision three of this part
providing for maintenance, in any matrimonial  action  the  court  shall
make  its  award for temporary maintenance pursuant to the provisions of
this subdivision.
  b. For purposes of this subdivision, the following  definitions  shall
be used:
  (1) "Payor" shall mean the spouse with the higher income.
  (2) "Payee" shall mean the spouse with the lower income.
  (3)  ["Length  of  marriage"  shall  mean  the period from the date of
marriage until the date of commencement of action.
  (4)] "Income" shall mean[:
  (a)] income as defined in the child support standards act and codified
in section two hundred forty of this article and  section  four  hundred
thirteen of the family court act[; and
  (b)  income  from income producing property to be distributed pursuant
to subdivision five of this part].
  [(5)] (4) "Income cap" shall mean up to  and  including  five  hundred
thousand dollars of the payor's annual income; provided, however, begin-
ning  January thirty-first, two thousand [twelve] FOURTEEN and every two
years thereafter, the [payor's annual] income CAP amount shall  increase
by  the product of the average annual percentage changes in the consumer

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

A. 6728                             2

price index for all urban consumers (CPI-U) as published by  the  United
States  department  of labor bureau of labor statistics for the two year
period rounded to the nearest one thousand dollars. The office of  court
administration shall determine and publish the income cap.
  [(6)]  (5)  "Guideline amount of temporary maintenance" shall mean the
sum derived by the application of paragraph c OR D of this subdivision.
  [(7) "Guideline duration" shall mean the durational period  determined
by the application of paragraph d of this subdivision.
  (8)  "Presumptive award" shall mean the guideline amount of the tempo-
rary maintenance award for the guideline duration prior to  the  court's
application of any adjustment factors as provided in subparagraph one of
paragraph e of this subdivision.
  (9)] (6) "Self-support reserve" shall mean the self-support reserve as
defined  in  the child support standards act and codified in section two
hundred forty of this article and section four hundred thirteen  of  the
family court act.
  c.  [The court shall determine the guideline amount of temporary main-
tenance in accordance with the provisions of this paragraph after deter-
mining the income of the parties:
  (1) Where the payor's income is up to and including the income cap:
  (a) the court shall subtract twenty percent of the income of the payee
from thirty percent of the income up to the income cap of the payor.
  (b) the court shall then multiply the sum of the payor's income up  to
and  including  the  income  cap  and all of the payee's income by forty
percent.
  (c) the court shall subtract the income of the payee from  the  amount
derived from clause (b) of this subparagraph.
  (d)  the  guideline amount of temporary maintenance shall be the lower
of the amounts determined by clauses (a) and (c) of  this  subparagraph;
if the amount determined by clause (c) of this subparagraph is less than
or equal to zero, the guideline amount shall be zero dollars.
  (2) Where the income of the payor exceeds the income cap:
  (a)  the court shall determine the guideline amount of temporary main-
tenance for that portion of the payor's income that is up to and includ-
ing the income cap according to subparagraph one of this paragraph, and,
for the payor's income in excess of the  income  cap,  the  court  shall
determine  any  additional  guideline  amount  of  temporary maintenance
through consideration of the following factors:
  (i) the length of the marriage;
  (ii) the substantial differences in the incomes of the parties;
  (iii) the standard of living of the  parties  established  during  the
marriage;
  (iv) the age and health of the parties;
  (v) the present and future earning capacity of the parties;
  (vi) the need of one party to incur education or training expenses;
  (vii) the wasteful dissipation of marital property;
  (viii) the transfer or encumbrance made in contemplation of a matrimo-
nial action without fair consideration;
  (ix)  the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
  (x) acts by one party against another that have inhibited or  continue
to  inhibit  a  party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to  acts  of  domestic
violence  as provided in section four hundred fifty-nine-a of the social
services law;
  (xi) the availability and cost of medical insurance for the parties;

A. 6728                             3

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

A. 6728                             4

the  payor's  income below the self-support reserve for a single person,
[the presumptive amount of] the guideline amount  of  temporary  mainte-
nance  shall  be the difference between the payor's income and the self-
support  reserve.  If  the  payor's  income  is  below  the self-support
reserve, there is a rebuttable presumption that no temporary maintenance
is awarded.
  [d. The court shall determine  the  guideline  duration  of  temporary
maintenance by considering the length of the marriage.]
  F.  Temporary  maintenance  shall  terminate  upon the issuance of the
final [award] DETERMINATION of maintenance or the death of either party,
whichever occurs first.
  [e.] G. (1) The court shall order the  [presumptive  award]  GUIDELINE
AMOUNT of temporary maintenance in accordance with paragraphs c and d of
this  subdivision,  unless  the court finds that the [presumptive award]
GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE is unjust or inappropriate and
adjusts the [presumptive award] GUIDELINE AMOUNT  of  temporary  mainte-
nance accordingly based upon consideration of the following factors:
  (a)  [the  standard  of  living  of the parties established during the
marriage;
  (b)] the age and health of the parties;
  [(c)] (B) the PRESENT OR  FUTURE  earning  capacity  of  the  parties,
INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
  [(d) the need of one party to incur education or training expenses;
  (e)] (C) the wasteful dissipation of marital property[;
  (f)  the  transfer], INCLUDING TRANSFERS or [encumbrance] ENCUMBRANCES
made in contemplation of a matrimonial  action  without  fair  consider-
ation;
  [(g)]  (D) the existence and duration of a pre-marital joint household
or a pre-divorce separate household;
  [(h)] (E) acts by one party against another  that  have  inhibited  or
continue  to  inhibit  a  party's  earning capacity or ability to obtain
meaningful employment[. Such acts include but are not limited to acts of
domestic violence as provided in section four  hundred  fifty-nine-a  of
the social services law;
  (i)] OR THAT CONSTITUTE EGREGIOUS CONDUCT;
  (F) the availability and cost of medical insurance for the parties;
  [(j)]  (G)  the care of [the] children or stepchildren, disabled adult
children or stepchildren, elderly parents or in-laws PROVIDED DURING THE
MARRIAGE that [has inhibited or continues to inhibit] INHIBITS a party's
earning capacity [or ability to obtain meaningful employment];
  [(k) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
  (l) the need to pay for exceptional additional expenses for the  child
or  children,  including,  but  not  limited to, schooling, day care and
medical treatment;
  (m)] (H) the tax consequences to each party;
  (I) THE STANDARD OF LIVING  OF  THE  PARTIES  ESTABLISHED  DURING  THE
MARRIAGE; AND
  [(n)  marital property subject to distribution pursuant to subdivision
five of this part;
  (o) the reduced or lost earning capacity of the party  seeking  tempo-
rary  maintenance  as  a result of having foregone or delayed education,
training, employment or career opportunities during the marriage;
  (p) the contributions and services  of  the  party  seeking  temporary
maintenance  as  a  spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and

A. 6728                             5

  (q)] (J) any other factor which the court shall expressly find  to  be
just and proper.
  (2)  Where  the  court  finds that the [presumptive award of temporary
maintenance] GUIDELINE AMOUNT OF  TEMPORARY  MAINTENANCE  is  unjust  or
inappropriate  and  the  court adjusts the [presumptive award] GUIDELINE
AMOUNT of temporary maintenance pursuant to this  paragraph,  the  court
shall  set  forth, in a written [order] OR ORAL DECISION, the [amount of
the unadjusted presumptive award] GUIDELINE AMOUNT of temporary  mainte-
nance,  the  factors  it  considered,  and  the  reasons  that the court
adjusted the [presumptive award] GUIDELINE AMOUNT of  temporary  mainte-
nance.  [Such written order shall not be waived by either party or coun-
sel.]
  (3) Where either or both parties are unrepresented,  the  court  shall
not  enter  a  temporary  maintenance order unless the COURT INFORMS THE
unrepresented party or parties [have been informed] of the  [presumptive
award] GUIDELINE AMOUNT of temporary maintenance.
  [f.  A  validly  executed agreement or stipulation voluntarily entered
into between the parties in an action commenced after the effective date
of this subdivision presented to the court for incorporation in an order
shall include a provision stating that the parties have been advised  of
the  provisions  of  this  subdivision,  and  that the presumptive award
provided for therein results in the correct amount of temporary  mainte-
nance. In the event that such agreement or stipulation deviates from the
presumptive award of temporary maintenance, the agreement or stipulation
must specify the amount that such presumptive award of temporary mainte-
nance  would  have been and the reason or reasons that such agreement or
stipulation does not provide for payment of that amount. Such  provision
may not be waived by either party or counsel.  Nothing contained in this
subdivision  shall  be  construed  to alter the rights of the parties to
voluntarily enter into validly executed agreements or stipulations which
deviate from the presumptive award  of  temporary  maintenance  provided
such  agreements  or  stipulations  comply  with  the provisions of this
subdivision. The court shall, however, retain discretion with respect to
temporary, and post-divorce maintenance awards pursuant to this section.
Any court order incorporating a validly  executed  agreement  or  stipu-
lation  which  deviates  from the presumptive award of temporary mainte-
nance shall set forth the court's reasons for such deviation.
  g.] H. When a party  has  defaulted  and/or  the  court  is  otherwise
presented  with  insufficient  evidence to determine [gross] income, the
court shall order the temporary maintenance award based upon  the  needs
of the payee or the standard of living of the parties prior to commence-
ment  of  the  divorce  action,  whichever is greater. Such order may be
retroactively modified upward without a showing  of  change  in  circum-
stances upon a showing of newly discovered or obtained evidence.
  [h.]  I.  In  any action or proceeding for modification of an order of
maintenance or alimony existing prior to  the  effective  date  of  this
subdivision, brought pursuant to this article, the temporary maintenance
guidelines  set  forth in this subdivision shall not constitute a change
of circumstances warranting modification of such support order.
  [i. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier  to  remarriage,  as
defined  in  subdivision  six of section two hundred fifty-three of this
article, on the factors enumerated in this subdivision.]
  S 2. Subdivision 6 of part B of section 236 of the domestic  relations
law,  as  amended by chapter 371 of the laws of 2010, is amended to read
as follows:

A. 6728                             6

  6. Post-divorce maintenance awards. a. Except where the  parties  have
entered  into  an  agreement  pursuant to subdivision three of this part
providing for maintenance, in any  matrimonial  action  the  court  [may
order  maintenance in such amount as justice requires, having regard for
the  standard  of living of the parties established during the marriage,
whether the party in whose favor maintenance is granted lacks sufficient
property and income to provide for  his  or  her  reasonable  needs  and
whether the other party has sufficient property or income to provide for
the  reasonable needs of the other and the circumstances of the case and
of the respective parties. Such order shall be effective as of the  date
of  the  application therefor, and any retroactive amount of maintenance
due shall be paid in one sum  or  periodic  sums,  as  the  court  shall
direct,  taking  into  account any amount of temporary maintenance which
has been paid. In determining the amount and duration of maintenance the
court shall consider:
  (1) the income and property of the respective parties including  mari-
tal property distributed pursuant to subdivision five of this part;
  (2) the length of the marriage;
  (3) the age and health of both parties;
  (4) the present and future earning capacity of both parties;
  (5) the need of one party to incur education or training expenses;
  (6)  the  existence and duration of a pre-marital joint household or a
pre-divorce separate household;
  (7) acts by one party against another that have inhibited or  continue
to  inhibit  a  party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to  acts  of  domestic
violence  as provided in section four hundred fifty-nine-a of the social
services law;
  (8) the ability of the party seeking maintenance to  become  self-sup-
porting  and,  if  applicable, the period of time and training necessary
therefor;
  (9) reduced or lost lifetime earning capacity  of  the  party  seeking
maintenance  as a result of having foregone or delayed education, train-
ing, employment, or career opportunities during the marriage;
  (10) the presence of children of the marriage in the respective  homes
of the parties;
  (11) the care of the children or stepchildren, disabled adult children
or  stepchildren,  elderly  parents  or  in-laws  that  has inhibited or
continues to inhibit a party's earning capacity;
  (12) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
  (13) the need to pay  for  exceptional  additional  expenses  for  the
child/children,  including  but  not limited to, schooling, day care and
medical treatment;
  (14) the tax consequences to each party;
  (15) the equitable distribution of marital property;
  (16) contributions and services of the party seeking maintenance as  a
spouse,  parent,  wage earner and homemaker, and to the career or career
potential of the other party;
  (17) the wasteful dissipation of marital property by either spouse;
  (18) the transfer or encumbrance made in contemplation of a matrimoni-
al action without fair consideration;
  (19) the loss of health insurance benefits  upon  dissolution  of  the
marriage,  and  the  availability  and cost of medical insurance for the
parties; and

A. 6728                             7

  (20) any other factor which the court shall expressly find to be  just
and  proper]  SHALL MAKE THE AWARD FOR POST-DIVORCE MAINTENANCE PURSUANT
TO THE PROVISIONS OF THIS SUBDIVISION.
  b. [In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
  c.  The court may award permanent maintenance, but an award of mainte-
nance shall terminate upon the death of either party or upon the recipi-
ent's valid or invalid marriage, or upon modification pursuant to  para-
graph  b  of  subdivision  nine  of  this  part  or  section two hundred
forty-eight of this chapter.
  d. In any decision made pursuant to this subdivision the court  shall,
where  appropriate,  consider  the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred  fifty-three  of  this
article,  on the factors enumerated in paragraph a of this subdivision.]
FOR PURPOSES OF THIS SUBDIVISION, THE  FOLLOWING  DEFINITIONS  SHALL  BE
USED:
  (1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
  (2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
  (3) "INCOME" SHALL MEAN:
  (I)  INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND  SECTION  FOUR  HUNDRED
THIRTEEN OF THE FAMILY COURT ACT, EXCEPT THAT TEMPORARY MAINTENANCE PAID
PURSUANT  TO  SUBDIVISION  FIVE-A  OF THIS PART AND SPOUSAL SUPPORT PAID
PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT  ACT,  SHALL
NOT BE DEDUCTED FROM PAYOR'S INCOME; AND
  (II)  INCOME  FROM  INCOME-PRODUCING  PROPERTY  DISTRIBUTED  OR  TO BE
DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
  (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING FIVE HUNDRED  THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY  THIRTY-FIRST, TWO THOUSAND FOURTEEN AND EVERY TWO YEARS THEREAFTER,
THE INCOME CAP SHALL INCREASE BY  THE  PRODUCT  OF  THE  AVERAGE  ANNUAL
PERCENTAGE  CHANGES  IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS
(CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU  OF
LABOR  STATISTICS  FOR  THE  TWO  YEAR PERIOD ROUNDED TO THE NEAREST ONE
THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
  (5) "GUIDELINE AMOUNT OF  POST-DIVORCE  MAINTENANCE"  SHALL  MEAN  THE
DOLLAR  AMOUNT  DERIVED  BY  THE APPLICATION OF PARAGRAPH C OR D OF THIS
SUBDIVISION.
  (6) "GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE"  SHALL  MEAN  THE
DURATIONAL  PERIOD  DETERMINED BY THE APPLICATION OF PARAGRAPH E OF THIS
SUBDIVISION.
  (7) "POST-DIVORCE MAINTENANCE GUIDELINE  OBLIGATION"  SHALL  MEAN  THE
GUIDELINE  AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE DURATION
OF POST-DIVORCE MAINTENANCE.
  (8) "POST-DIVORCE MAINTENANCE" SHALL MEAN A SUM TO BE PAID PURSUANT TO
A FINAL COURT ORDER  OR  DECREE  DISSOLVING  OR  ANNULLING  A  MARRIAGE,
DECLARING  THE  NULLITY OF A MARRIAGE, OR A VALID AGREEMENT, BETWEEN THE
PARTIES, BY ONE PARTY TO THE OTHER.
  (9) LENGTH OF MARRIAGE SHALL MEAN THE PERIOD FROM THE DATE OF MARRIAGE
UNTIL THE DATE OF COMMENCEMENT OF ACTION.
  (10) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS  IS
DEFINED  IN  THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN  OF  THE
FAMILY COURT ACT.

A. 6728                             8

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

A. 6728                             9

  F. (1) THE COURT SHALL ORDER THE  POST-DIVORCE  MAINTENANCE  GUIDELINE
OBLIGATION IN ACCORDANCE WITH PARAGRAPHS C, D AND E OF THIS SUBDIVISION,
UNLESS THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
GATION  IS  UNJUST OR INAPPROPRIATE AND ADJUSTS THE POST-DIVORCE MAINTE-
NANCE  GUIDELINE  OBLIGATION ACCORDINGLY BASED UPON CONSIDERATION OF THE
FOLLOWING FACTORS:
  (A) THE AGE AND HEALTH OF THE PARTIES;
  (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE  PARTIES,  INCLUDING
THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
  (C)  THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES OF PROPERTY  MADE  IN  CONTEMPLATION  OF  A  MATRIMONIAL
ACTION WITHOUT FAIR CONSIDERATION;
  (D)  THE  EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
  (E) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR  CONTINUE
TO  INHIBIT  A  PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT OR THAT CONSTITUTE EGREGIOUS CONDUCT;
  (F) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (G) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT  CHILDREN  OR
STEPCHILDREN,  ELDERLY  PARENTS  OR IN-LAWS PROVIDED DURING THE MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
  (H) THE TAX CONSEQUENCES TO EACH PARTY;
  (I) THE EQUITABLE DISTRIBUTION OF THE MARITAL PROPERTY;
  (J) THE EFFECT OF A BARRIER TO REMARRIAGE, AS DEFINED  IN  SUBDIVISION
SIX OF SECTION TWO HUNDRED FIFTY-THREE OF THIS ARTICLE;
  (K)  ANY  OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
  (2) WHERE THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE  GUIDELINE
OBLIGATION IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE POST-DI-
VORCE  MAINTENANCE  GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE
COURT SHALL SET FORTH, IN A WRITTEN OR ORAL DECISION, THE AMOUNT OF  THE
UNADJUSTED POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION, THE FACTORS IT
CONSIDERED,  AND  THE  REASONS  THAT THE COURT ADJUSTED THE POST-DIVORCE
MAINTENANCE OBLIGATION.
  G. WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT
ENTER A MAINTENANCE ORDER OR  JUDGMENT  UNLESS  THE  COURT  INFORMS  THE
UNREPRESENTED PARTY OR PARTIES OF THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION.
  H.  A  VALIDLY  EXECUTED  AGREEMENT OR STIPULATION VOLUNTARILY ENTERED
INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE
OF THIS PARAGRAPH PRESENTED TO THE COURT FOR INCORPORATION IN  AN  ORDER
OR JUDGMENT SHALL INCLUDE A PROVISION STATING THAT THE PARTIES HAVE BEEN
ADVISED  OF  THE PROVISIONS OF THIS PARAGRAPH, AND THAT THE POST-DIVORCE
MAINTENANCE PROVIDED FOR  THEREIN  WOULD  PRESUMPTIVELY  RESULT  IN  THE
AMOUNT  OF  POST-DIVORCE  MAINTENANCE GUIDELINE OBLIGATION. IN THE EVENT
THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE  MAIN-
TENANCE  GUIDELINE OBLIGATION, THE AGREEMENT OR STIPULATION MUST SPECIFY
THE AMOUNT THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION WOULD
HAVE BEEN AND THE REASON OR REASONS THAT SUCH AGREEMENT  OR  STIPULATION
DOES  NOT  PROVIDE FOR PAYMENT OF THAT AMOUNT. SUCH PROVISION MAY NOT BE
WAIVED BY EITHER PARTY OR COUNSEL. NOTHING CONTAINED IN  THIS  PARAGRAPH
SHALL  BE  CONSTRUED  TO  ALTER THE RIGHTS OF THE PARTIES TO VOLUNTARILY
ENTER INTO VALIDLY EXECUTED AGREEMENTS  OR  STIPULATIONS  WHICH  DEVIATE
FROM  THE  POST-DIVORCE  MAINTENANCE  GUIDELINE OBLIGATION PROVIDED SUCH
AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS PARAGRAPH.

A. 6728                            10

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

Co-Sponsors

A6728A - Bill Details

Current Committee:
Law Section:
Domestic Relations Law
Laws Affected:
Amd §236, rpld §248, Dom Rel L; amd §412, Fam Ct Act

A6728A - Bill Texts

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Relates to modification of temporary maintenance awards and maintenance obligations.

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

                                 6728--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             April 17, 2013
                               ___________

Introduced by M. of A. PAULIN, SEPULVEDA, ROBERTS, JAFFEE -- Multi-Spon-
  sored  by  --  M.   of A. GIBSON, GOTTFRIED, PERRY, WEISENBERG -- read
  once  and  referred  to  the  Committee  on  Judiciary  --   committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT to amend the domestic relations law and the family court act, in
  relation to modifications of temporary maintenance awards and  mainte-
  nance obligations; and repealing section 248 of the domestic relations
  law, relating thereto

  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].

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09639-09-3

A. 6728--A                          2

  (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] FOURTEEN and every two
years thereafter, the [payor's annual] income CAP amount shall  increase
by  the product of the average annual percentage changes in the consumer
price index for all urban consumers (CPI-U) as published by  the  United
States  department  of labor bureau of labor statistics for the two year
period rounded to the nearest one thousand dollars. The office of  court
administration shall determine and publish the income cap.
  (6)  "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)] (7) "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;

A. 6728--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] PAYEE as a result of having foregone  or  delayed
education,  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

A. 6728--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 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;

A. 6728--A                          5

  [(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
retroactively modified upward without a showing  of  change  in  circum-
stances upon a showing of newly discovered or obtained evidence.

A. 6728--A                          6

  [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;
  (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;

A. 6728--A                          7

  (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:
  (I)  INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND  SECTION  FOUR  HUNDRED
THIRTEEN OF THE FAMILY COURT ACT, EXCEPT THAT TEMPORARY MAINTENANCE PAID
PURSUANT  TO  SUBDIVISION  FIVE-A  OF THIS PART AND SPOUSAL SUPPORT PAID
PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT  ACT,  SHALL
NOT BE DEDUCTED FROM PAYOR'S INCOME; AND
  (II)  INCOME  FROM  INCOME-PRODUCING  PROPERTY  DISTRIBUTED  OR  TO BE
DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
  (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY THIRTY-FIRST, TWO THOUSAND FOURTEEN AND EVERY TWO YEARS  THEREAFTER,
THE INCOME CAP AMOUNT SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNU-
AL  PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUM-
ERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU
OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE  NEAREST  ONE
THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
  (5)  "GUIDELINE  AMOUNT  OF  POST-DIVORCE  MAINTENANCE" SHALL MEAN THE
DOLLAR AMOUNT DERIVED BY THE APPLICATION OF PARAGRAPH C  OR  D  OF  THIS
SUBDIVISION.

A. 6728--A                          8

  (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.
  (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:

A. 6728--A                          9

  (1) THE COURT SHALL DETERMINE THE GUIDELINE DURATION  OF  POST-DIVORCE
MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:
     LENGTH OF THE MARRIAGE               % OF THE LENGTH OF THE MARRIAGE
                                               FOR WHICH MAINTENANCE
                                                   WILL BE PAYABLE
     0 UP TO AND INCLUDING 5 YEARS                      30%
     MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS         40%
     MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS        50%
     MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS       60%
     MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS       70%
     MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS       80%
     MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS       90%
     MORE THAN 20, UP TO AND INCLUDING 25 YEARS        100%
     MORE THAN 25 YEARS                           NONDURATIONAL
  (2)  NOTWITHSTANDING  THE PROVISIONS OF SUBPARAGRAPH (1) OF THIS PARA-
GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE  DEATH  OF  THE
PAYOR OR PAYEE.
  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

A. 6728--A                         10

  (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-
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  2013 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 PRESUMPTIVELY 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 OBLIGATION WOULD
HAVE BEEN AND THE REASON OR REASONS THAT SUCH AGREEMENT  OR  STIPULATION
DOES  NOT  PROVIDE FOR PAYMENT OF THAT AMOUNT. SUCH PROVISION MAY NOT BE
WAIVED BY EITHER PARTY OR COUNSEL. NOTHING CONTAINED IN THIS 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 SUBDIVI-
SION.  ANY COURT ORDER INCORPORATING A  VALIDLY  EXECUTED  AGREEMENT  OR
STIPULATION  WHICH  DEVIATES FROM THE POST-DIVORCE MAINTENANCE GUIDELINE
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  A  CHAPTER  OF
THE  LAWS  OF  2013  WHICH AMENDED THIS SUBDIVISION, BROUGHT PURSUANT TO
THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAINTENANCE SET  FORTH  IN
THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANT-
ING 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 A CHAPTER OF
THE LAWS OF 2013 WHICH AMENDED THIS  SUBDIVISION,  BROUGHT  PURSUANT  TO
THIS  ARTICLE,  THE GUIDELINES FOR POST-DIVORCE MAINTENANCE SET FORTH IN
PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL APPLY.

A. 6728--A                         11

  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 CIRCUMSTANCES including financial hardship, 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 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  judg-
ment  for  such period of time and under such circumstances as the court
determines. The court shall not reduce or annul any arrears  of  mainte-
nance  which have been reduced to final judgment pursuant to section two
hundred forty-four of this article.  No  other  arrears  of  maintenance
which  have  accrued  prior  to  the making of such application shall be
subject to modification or annulment unless the defaulting  party  shows
good  cause for failure to make application for relief from the judgment
or order directing such payment prior to the accrual of such arrears and
the facts and circumstances constituting good cause are set forth  in  a
written  memorandum  of decision. Such modification may increase mainte-
nance nunc pro tunc as of the date of application based on newly discov-
ered evidence. Any retroactive amount of maintenance due  shall,  except
as  provided  for  herein,  be  paid in one sum or periodic sums, as the
court directs, taking into account any  temporary  or  partial  payments
which have been made. The provisions of this subdivision shall not apply
to a separation agreement made prior to the effective date of this part.
  S 4. 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. A. 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.
  B.  FOR  PURPOSES  OF THIS SECTION, 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 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.

A. 6728--A                         12

  (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 FOURTEEN AND EVERY TWO YEARS  THEREAFTER,
THE INCOME CAP AMOUNT SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNU-
AL  PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUM-
ERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU
OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE  NEAREST  ONE
THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
  (5)  "GUIDELINE  AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED
BY THE APPLICATION OF SUBDIVISION C OR D OF THIS SECTION.
  (6) "SELF-SUPPORT RESERVE" SHALL  MEAN  THE  SELF-SUPPORT  RESERVE  AS
DEFINED  IN  THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW  AND  SECTION  FOUR  HUNDRED
THIRTEEN OF THIS PART.
  C.  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:
  (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 PARAGRAPH TWO OF THIS SUBDIVISION.
  (4)  THE  COURT  SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY PARA-
GRAPHS ONE AND THREE OF THIS SUBDIVISION.
  (5) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
MINED BY PARAGRAPH FOUR OF THIS SUBDIVISION EXCEPT THAT, IF  THE  AMOUNT
DETERMINED  BY  PARAGRAPH FOUR OF THIS SUBDIVISION IS LESS THAN OR EQUAL
TO ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
  D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP,  THE  COURT  SHALL
DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS:
  (1)  THE  COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
ONE THROUGH FOUR OF SUBDIVISION C OF THIS SECTION FOR THE TOTAL  INCOMES
OF PAYOR AND PAYEE.
  (2)  THE  COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
ONE THROUGH FOUR OF SUBDIVISION C OF THIS  SECTION  FOR  THE  INCOME  OF
PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE.
  (3) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE EITHER:
  (A) THE CALCULATION DERIVED FROM PARAGRAPH ONE OF THIS SUBDIVISION; OR
  (B)  THE AMOUNT DERIVED FROM PARAGRAPH TWO OF THIS SUBDIVISION PLUS AN
AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION  OF  THE  FACTORS
SET FORTH IN PARAGRAPH ONE OF SUBDIVISION F OF THIS SECTION.
  (4)  IN  ANY  DECISION  MADE PURSUANT TO SUBPARAGRAPH (B) OF PARAGRAPH
THREE 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.
  E. 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.
  F. (1) THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF  SPOUSAL  SUPPORT
IN  ACCORDANCE  WITH  SUBDIVISIONS  C  AND D OF THIS SECTION, UNLESS THE

A. 6728--A                         13

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:
  (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 SUPPORT PROCEEDING WITHOUT
FAIR CONSIDERATION;
  (E) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD  OR  A
PRE-SUPPORT PROCEEDINGS 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 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
  (N) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO  BE  JUST
AND PROPER.
  (2) 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.
  (3) 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.
  G. 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.
  H. 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 THIRTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO

A. 6728--A                         14

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  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 is REPEALED.
  S 8. This act shall take effect immediately.

Co-Sponsors

A6728B (ACTIVE) - Bill Details

Current Committee:
Law Section:
Domestic Relations Law
Laws Affected:
Amd §236, rpld §248, Dom Rel L; amd §412, Fam Ct Act

A6728B (ACTIVE) - Bill Texts

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Relates to modification of temporary maintenance awards and maintenance obligations.

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

                                 6728--B

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             April 17, 2013
                               ___________

Introduced by M. of A. PAULIN, SEPULVEDA, ROBERTS, JAFFEE -- Multi-Spon-
  sored  by  --  M.   of A. GIBSON, GOTTFRIED, PERRY, WEISENBERG -- read
  once  and  referred  to  the  Committee  on  Judiciary  --   committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said  committee -- reported and referred to the Committee on Codes
  -- committee discharged, bill amended, ordered  reprinted  as  amended
  and recommitted to said committee

AN  ACT to amend the domestic relations law and the family court act, in
  relation to modifications of temporary maintenance awards and  mainte-
  nance obligations; and repealing section 248 of the domestic relations
  law, relating thereto

  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09639-11-3

A. 6728--B                          2

  (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] FOURTEEN and every  two
years  thereafter, the [payor's annual] income CAP amount shall increase
by the product of the average annual percentage changes in the  consumer
price  index  for all urban consumers (CPI-U) as published by the United
States department of labor bureau of labor statistics for the  two  year
period  rounded to the nearest one thousand dollars. The office of court
administration shall determine and publish the income cap.
  (6) "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)] (7) "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;

A. 6728--B                          3

  (ix)  the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
  (x)  acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability  to  obtain  meaningful
employment.  Such  acts  include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the  social
services law;
  (xi) the availability and cost of medical insurance for the parties;
  (xii)  the  care of the children or stepchildren, disabled adult chil-
dren or stepchildren, elderly parents or in-laws that has  inhibited  or
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

A. 6728--B                          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 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;

A. 6728--B                          5

  [(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
retroactively modified upward without a showing  of  change  in  circum-
stances upon a showing of newly discovered or obtained evidence.

A. 6728--B                          6

  [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;
  (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;

A. 6728--B                          7

  (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:
  (I)  INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND  SECTION  FOUR  HUNDRED
THIRTEEN OF THE FAMILY COURT ACT, EXCEPT THAT TEMPORARY MAINTENANCE PAID
PURSUANT  TO  SUBDIVISION  FIVE-A  OF THIS PART AND SPOUSAL SUPPORT PAID
PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT  ACT,  SHALL
NOT BE DEDUCTED FROM PAYOR'S INCOME; AND
  (II)  INCOME  FROM  INCOME-PRODUCING  PROPERTY  DISTRIBUTED  OR  TO BE
DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
  (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND
DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
ARY THIRTY-FIRST, TWO THOUSAND FOURTEEN AND EVERY TWO YEARS  THEREAFTER,
THE INCOME CAP AMOUNT SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNU-
AL  PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUM-
ERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU
OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE  NEAREST  ONE
THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
  (5)  "GUIDELINE  AMOUNT  OF  POST-DIVORCE  MAINTENANCE" SHALL MEAN THE
DOLLAR AMOUNT DERIVED BY THE APPLICATION OF PARAGRAPH C  OR  D  OF  THIS
SUBDIVISION.

A. 6728--B                          8

  (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.
  (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:

A. 6728--B                          9

  (1) THE COURT SHALL DETERMINE THE GUIDELINE DURATION  OF  POST-DIVORCE
MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:
     LENGTH OF THE MARRIAGE               % OF THE LENGTH OF THE MARRIAGE
                                               FOR WHICH MAINTENANCE
                                                   WILL BE PAYABLE
     0 UP TO AND INCLUDING 5 YEARS                      30%
     MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS         40%
     MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS        50%
     MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS       60%
     MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS       70%
     MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS       80%
     MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS       90%
     MORE THAN 20, UP TO AND INCLUDING 25 YEARS        100%
     MORE THAN 25 YEARS                           NONDURATIONAL
  (2)  NOTWITHSTANDING  THE PROVISIONS OF SUBPARAGRAPH (1) OF THIS PARA-
GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE  DEATH  OF  THE
PAYOR OR PAYEE.
  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

A. 6728--B                         10

  (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-
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 THIRTEEN 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 A CHAPTER OF
THE LAWS OF  TWO  THOUSAND  THIRTEEN  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 A CHAPTER OF
THE LAWS OF  TWO  THOUSAND  THIRTEEN  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.

A. 6728--B                         11

  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 CIRCUMSTANCES including financial hardship, 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 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  judg-
ment  for  such period of time and under such circumstances as the court
determines. The court shall not reduce or annul any arrears  of  mainte-
nance  which have been reduced to final judgment pursuant to section two
hundred forty-four of this article.  No  other  arrears  of  maintenance
which  have  accrued  prior  to  the making of such application shall be
subject to modification or annulment unless the defaulting  party  shows
good  cause for failure to make application for relief from the judgment
or order directing such payment prior to the accrual of such arrears and
the facts and circumstances constituting good cause are set forth  in  a
written  memorandum  of decision. Such modification may increase mainte-
nance nunc pro tunc as of the date of application based on newly discov-
ered evidence. Any retroactive amount of maintenance due  shall,  except
as  provided  for  herein,  be  paid in one sum or periodic sums, as the
court directs, taking into account any  temporary  or  partial  payments
which have been made. The provisions of this subdivision shall not apply
to a separation agreement made prior to the effective date of this part.
  S 4. 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. A. 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.
  B.  FOR  PURPOSES  OF THIS SECTION, 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 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.

A. 6728--B                         12

  (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 FOURTEEN AND EVERY TWO YEARS  THEREAFTER,
THE INCOME CAP AMOUNT SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNU-
AL  PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUM-
ERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU
OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE  NEAREST  ONE
THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
PUBLISH THE INCOME CAP.
  (5)  "GUIDELINE  AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED
BY THE APPLICATION OF SUBDIVISION C OR D OF THIS SECTION.
  (6) "SELF-SUPPORT RESERVE" SHALL  MEAN  THE  SELF-SUPPORT  RESERVE  AS
DEFINED  IN  THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW  AND  SECTION  FOUR  HUNDRED
THIRTEEN OF THIS PART.
  C.  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:
  (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 PARAGRAPH TWO OF THIS SUBDIVISION.
  (4)  THE  COURT  SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY PARA-
GRAPHS ONE AND THREE OF THIS SUBDIVISION.
  (5) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
MINED BY PARAGRAPH FOUR OF THIS SUBDIVISION EXCEPT THAT, IF  THE  AMOUNT
DETERMINED  BY  PARAGRAPH FOUR OF THIS SUBDIVISION IS LESS THAN OR EQUAL
TO ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
  D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP,  THE  COURT  SHALL
DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS:
  (1)  THE  COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
ONE THROUGH FOUR OF SUBDIVISION C OF THIS SECTION FOR THE TOTAL  INCOMES
OF PAYOR AND PAYEE.
  (2)  THE  COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
ONE THROUGH FOUR OF SUBDIVISION C OF THIS  SECTION  FOR  THE  INCOME  OF
PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE.
  (3) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE EITHER:
  (A) THE CALCULATION DERIVED FROM PARAGRAPH ONE OF THIS SUBDIVISION; OR
  (B)  THE AMOUNT DERIVED FROM PARAGRAPH TWO OF THIS SUBDIVISION PLUS AN
AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION  OF  THE  FACTORS
SET FORTH IN PARAGRAPH ONE OF SUBDIVISION F OF THIS SECTION.
  (4)  IN  ANY  DECISION  MADE PURSUANT TO SUBPARAGRAPH (B) OF PARAGRAPH
THREE 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.
  E. 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.
  F. (1) THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF  SPOUSAL  SUPPORT
IN  ACCORDANCE  WITH  SUBDIVISIONS  C  AND D OF THIS SECTION, UNLESS THE

A. 6728--B                         13

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:
  (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 SUPPORT PROCEEDING WITHOUT
FAIR CONSIDERATION;
  (E) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD  OR  A
PRE-SUPPORT PROCEEDINGS 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 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
  (N) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO  BE  JUST
AND PROPER.
  (2) 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.
  (3) 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.
  G. 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.
  H. 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 THIRTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO

A. 6728--B                         14

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  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 is REPEALED.
  S  8.  This  act  shall take effect on the sixtieth day after it shall
have become a law.

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