Relates to the duration and amount of maintenance and of spousal support; establishes new formulas for the amount of maintenance and spousal support and factors the court can use to deviate from that amount.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7645
SPONSOR: Weinstein (MS) TITLE OF BILL: An act to amend the domestic relations law and the
family court act, in relation to the duration and amount of maintenance
and of spousal support
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Matrimoni-
al Practice Advisory and Rules Committee.
This measure would enact new guidelines for both temporary and post-di-
vorce maintenance and spousal support. In developing this measure,
Justice Jeffrey Sunshine, chair of the Advisory Committee, informally
brought together lawyers belonging to different interest groups in an
attempt to achieve a compromise on maintenance guidelines that addresses
their sometimes conflicting concerns. Over a period of several months,
meetings were held by a working group with participation by the Family
Law Section of the New York State Bar Association, the New York Mainte-
nance Standards Coalition, the Women's Bar Association of the State of
New York, and the New York Chapter of the American Academy of Matrimoni-
al Lawyers.{1} This measure is the result of their collective efforts.
It recognizes the need to address the concerns of lower income communi-
ties, domestic violence communities, families with middle class econom-
ics and families with exceptional wealth. It was approved by the Advi-
sory Committee by a vote of 26-1. As of the time the compromise measure
was submitted by the Advisory Committee to the Chief Administrative
Judge, the organizations who sent representatives to the working group
all endorsed the compromise measure as follows: Women's Bar Association
of the State of New York, the Executive Committee of the Family Law
Section of the New York State Bar Association, the Board of Managers of
the New York Chapter of the American Academy of Matrimonial Lawyers, and
the New York State Maintenance Standards Coalition.
Highlights of this measure, (revised to include technical amendments
requested by the Chief Administrative Judge's Family Court Advisory and
Rules Committee) include:
1. The income cap for the formula portion of temporary maintenance
awards would be lowered from the current $543,000 to $175,000 of the
payor's income. The same $175,000 cap would apply to post-divorce main-
tenance awards.
2. There will be two formulas: one where child support will be paid and
where the temporary or post-divorce maintenance payor is also the non-
custodial parent for child support purposes; and one where child support
will not be paid, or where it will be paid but the temporary or post-di-
vorce maintenance payor is the custodial parent for child support
purposes. Those formulas are as follows:
a. With child support where the maintenance payor is also the non-custo-
dial parent for child support purposes: (i) subtract 25% of the mainte-
nance payee's income from 20% of the maintenance payor's income; (ii)
multiply the sum of the maintenance payor's income and the maintenance
payee's income by 40% and subtract the maintenance payee's income from
the result; (iii) the lower of the two amounts will be the guideline
amount of maintenance;
b. Without child support, or with child support but where the mainte-
nance payor is the custodial parent for child support purposes: (i)
subtract 20% of the maintenance payee's income from 30% of the mainte-
nance payor's income; (ii) multiply the sum of the maintenance payor's
income and the maintenance payee's income by 40% and subtract the main-
tenance payee's income from the result; (iii) the lower of the two
amounts will be the guideline amount of maintenance.
3. The court may adjust the guideline amount of maintenance up to the
cap where it finds that the guideline amount of maintenance is unjust or
inappropriate after consideration of one or more factors, which shall be
set forth in the court's written or on the record decision. Where there
is income over the cap, additional maintenance may be awarded after
consideration of one or more factors, which shall be set forth in the
court's decision or on the record.
4. Temporary maintenance terminates no later than the issuance of a
judgment of divorce or the death of either party - i.e., clarifying that
the Supreme Court has the power to limit the duration of temporary main-
tenance.
5. Post-divorce maintenance terminates on the death of either party or
the remarriage of the payee former spouse.
6. In determining temporary maintenance, the court can allocate the
responsibility for payment of specific family expenses between the
parties.
7. The definition of income for post-divorce maintenance will include
income from income-producing property that is being equitably distrib-
uted (also see "8" below).
8. New factors in post-divorce maintenance will include: termination of
child support, income or imputed income on assets being equitably
distributed, etc.
9. Durational formula for post-divorce maintenance is advisory, and the
durational periods contain ranges to afford courts more discretion. The
advisory durational formula in this measure contains more realistic
durations for payment of post-divorce maintenance than were included in
the maintenance guidelines legislation nearly enacted last spring (see
Senate 7266-A/Assembly 9606-A (2013-14)). However, nothing in the
instant measure would prevent the court from awarding non-durational,
post-divorce maintenance in an appropriate case.
10. In determining the duration of maintenance, the court is required to
consider anticipated retirement assets, benefits and retirement eligi-
bility age.
11. Actual or partial retirement will be a ground for modification of
post-divorce maintenance assuming it results in a substantial diminution
of income.
12. Elimination of enhanced earning capacity as a marital asset.
13. D.R.L. section 248 made gender neutral.
14. Spousal support guidelines are established for Family Court using
the same two formulas set forth for maintenance guidelines in "2" above,
as follows: one where child support will be paid and where the spousal
support payor is also the non-custodial parent for child support
purposes; and one where child support will not be paid, or where child
support will be paid but the spousal support payor is the custodial
parent for child support purposes. The same $175,000 income cap applies.
The court may adjust the guideline amount of spousal support up to the
cap where it finds that the guideline amount of spousal support is
unjust or inappropriate after consideration of one or more factors,
which shall be set forth in the court's written or on the record deci-
sion. Where there is income over the cap, additional spousal support may
be awarded after consideration of one or more factors, which shall be
set forth in the court's written or on the record decision.
15. A new factor in spousal support awards as well as maintenance awards
is termination of a child support award.
16. The Family Court may modify an order of spousal support upon a show-
ing of a substantial change in circumstances. Unless so modified, spous-
al support orders set pursuant to the guidelines shall continue until
the earliest to occur of a written or oral stipulation/agreement on the
record, issuance of a judgment of divorce or other order in a matrimoni-
al proceeding, or the death of either party. This measure does not
change current law with respect to Family Court's ability to terminate
spousal support. In addition, with the advent of no-fault divorce
(D.R.L. § 170(7)), payors have the ability to terminate spousal support
by obtaining a divorce without having to prove fault simply stating that
"the relationship between the parties has broken down irretrievably for
a period of at least six months, provided that one party has so stated
under oath."
As noted above, this measure is a compromise from the maintenance guide-
lines bill introduced in the Legislature last year. That measure, had it
been enacted, would have amended the current temporary maintenance
guidelines in effect pursuant to D.R.L. § 236(B) (5-a), and would have
adopted final maintenance and spousal support guidelines for the first
time in New York.
For the temporary maintenance guidelines currently effective pursuant to
D.R.L. § 236(B) (5-a), calculations of permanent maintenance are not
required. As calculations of permanent maintenance for uncontested
divorces will be required for the first time under this measure, our
Advisory Committee recommends development of a new calculator for use in
Supreme Court. The temporary maintenance calculator currently in use in
Supreme Court was developed by the Office of Court Administration in
2010 when the temporary maintenance guidelines were adopted. It requires
the user to calculate income under the Child Support Standards Act sepa-
rately on a worksheet, and then input the result into the calculator.{2}
Our Advisory Committee recommends that the new calculator perform the
calculation of Child Support Standards Act ("CSSA") income for the
user.{3} After calculating CSSA income, the calculator would calculate
temporary maintenance or permanent maintenance, as the case may be, and
then, if applicable, would also calculate child support. We believe that
introduction of this tool in Supreme Court will make the transition to
maintenance guidelines for permanent maintenance and uncontested
divorces much easier for the general public and the Judiciary. Under
this measure, judges are required to compute the guideline amount of
maintenance in every case up to the income cap of $175,000. This tool
will be an asset to the efficiency and smooth operation of the court
system.
Section 8 of this measure provides that the act takes effect 120 days
after it becomes law and applies to all matrimonial and Family Court
actions for spousal support commenced on or after such effective date,
including the provisions regarding post-divorce maintenance and spousal
support awards. However, the provisions of this measure regarding tempo-
rary maintenance would take effect 30 days after the measure becomes
law. We call for a shorter effective date for temporary maintenance
because the courts and the public are already familiar with procedures
for temporary maintenance awards. There already is in effect a temporary
maintenance worksheet and temporary maintenance calculator posted on the
Office of Court Administration's Divorce Resources Website at
http://www.nycourts.gov/divorce/Temporary Maintenance.shtm1 with
respect to implementation of the current temporary maintenance guide-
lines in effect pursuant to DRL 236(B)(5-a) enacted in 2010. These
tools can be easily modified to comply with the new provisions of this
measure. By contrast, the post-divorce maintenance and spousal support
provisions of the measure are completely new, and therefore the Office
of Court Administration will need additional time for training as well
as for creating new forms and procedures to implement the new
provisions. Similarly, the bench and the bar will need more time to
adapt to the new law. In addition, there was widespread concern that the
formula in existence for temporary maintenance yielded significantly
unfair awards for temporary maintenance payors with child support obli-
gations, thus justifying a shorter startup period.
This measure would have no fiscal impact upon the State.
LEGISLATIVE HISTORY: None. New proposal.
{1} Sandra Rivera, Esq. and Michelle Haskins, Esq. represented the
Women's Bar Association of the State of New York; Alton Abramowitz, Esq.
and Eric Tepper, Esq. represented the Family Law Section of the New York
State Bar Association; Elena Karabatos, Esq. represented the New York
Chapter of the American Academy of Matrimonial Lawyers; and Emily Ruben,
Esq. and Kate Wurmfeld, Esq. represented the NYS Maintenance Standards
Coalition.
{2} In Family Court, the calculations are performed automatically in the
UCMS system which is not used in Supreme Court.
{3} This measure requires one variation from calculation of income under
the Child Support Standards Act for purposes of calculating maintenance,
namely that alimony or maintenance actually paid or to be paid to a
spouse that is a party to the instant action should not be deducted from
income. This variation from the calculation of income under the Child
Support Standards Act in the measure is necessary because otherwise the
formula becomes circular by requiring deduction of the very amount that
is being calculated.
