NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7637
SPONSOR: Seawright (MS) TITLE OF BILL:
An act to amend the family court act and the domestic relations law, in
relation to spousal maintenance and child support in supreme and family
court
This is one in a series of meansures being inroduced at the request of
the Chief Administratice Judge upon the recommendation of her Family
Court Advisory and Rules Committee.
The Child Support Standards Act has promoted uniformity and fairness
through application of presumptive percentages and enumerated factors to
be considered in the calculation of income, deductions from income and
the bases for departures from the presumptive percentages. However, one
source of persistent confusion has been the treatment of spousal mainte-
nance in the calculation of child support with respect to the income of
both the recipient and the payor spouse. This measure would clear up the
ambiguity as to the implications for both parties. First, the measure
would amend Family Court Act § 413(1)(b)(5)(iii) and Domestic Relations
Law § 240(1-b)(5)(iii) to add a new subclause (I) to each that would
require that alimony or spousal maintenance actually paid to a spouse
who is a party to the action must be added to the recipient spouse's
income, provided that the order contains an automatic adjustment to take
effect upon the termination of the maintenance award. This addition
would be based upon an amount already paid, e.g., an amount reported on
the recipient spouse's last income tax return, and would not simply be
an estimate of future payments. In that respect, it codifies several
appellate cases. See, e.g., Simon v. Simon, 55 A.D.3d 477 (1St Dept.,
2008); Krukencamp v. Krukencamp, 54 A.D.3d 345 (2nd Dept., 2008); Lee
v. Lee, 79 A.D.3d 473 (2nd Dept.2005); Huber v Huber, 229 A.D.2d 904
(4th Sept., 1996).
Second, this measure amends the existing provision in both Family Court
Act § 413(1)(b)(5)(vii)(C) and Domestic Relations Law §
240(1-b)(5)(vii)(C) to clarify that, where spousal maintenance payments
are deducted from the payor's income, the order must contain a specific
provision adjusting the child support amount automatically upon the
termination of the spousal maintenance award. This relieves the custo-
dial parent of the burden of moving for a modification of the child
support order upon the termination of maintenance but leaves open the
possibility for either or both parties to seek a modification of the
automatic adjustment if, at the point where maintenance terminates, the
income of either of the parties has changed in an amount that would
qualify for modification under Family Court Act § 451(3)(b)(ii) or
Domestic Relations Law § 236B(9)(b)(2)(ii), e.g., in excess of 15% or a
lapse of three years or more. The specific adjustment in the amount of
child support is without prejudice to either party's right to seek a
modification in accordance with Family Court Act § 451(3) or Domestic
Relations Law § 236B(9)(b)(2) with the proviso that in a subsequent
action for modification, the inclusion of the specific adjustment shall
not by itself constitute a "substantial change of circumstances." One
commentator has observed that the Legislature simply failed to consider
the ambiguity of the statutory provision and his suggestion for the
courts would apply with greater force if this measure is enacted:
It is suggested that the court might comply with the requirement that
there be a specific adjustment by making same in accordance with exist-
ing income levels, so long as either party is free to seek modification
at any time upon a change in circumstances. This approach permits
compliance with the statutory proviso without casting the prospective
adjustment in stone because it keeps the courthouse door open to either
party in the event that the prospective adjustment is out of line with
actual income levels.
See T. Tippins, New York Matrimonial Law and Practice § 7:33 (Updated
Nov., 2014).
Numerous cases have held that durational spousal maintenance payments
should not be deducted from the payor's income unless the order speci-
fies some mechanism for an adjustment upon termination of the mainte-
nance. See, e.g., Zufall v. Zufall, 109 A.D.3d 1135 (4th Dept., 2013);
Schmitt v. Schmitt, 107 A.D.3d 1529 (4th Dept., 2013); Kerrigan v.
Kerrigan, 71 A.D.3d 737 (2nd Dept., 2010); Smith v Smith, 1 A.D.3d 870,
872-3 (3rd Dept., 2003)(citing Matter of Baker v Baker, 291 AD2d 751,
752-753 (3rd Dept., 2002) and Kessinger v Kessinger, 202 AD2d 752, 753-
754 (3rd Dept., 1994)). By including not only a mechanism but also a
specific adjustment, in a child support order to take effect upon the
termination of the maintenance award, this measure would enhance the
long-term fairness of the order.
The statutory provisions for child support should reflect the fact that
spousal maintenance is money no longer available as income to the payor,
but constitutes income to the payee so long as the order or agreement
for such maintenance lasts. New York State and Federal tax codes incor-
porate these concepts by allowing tax deductions for the payor and
requiring that it be considered as income to the payee. There is no
reason to distinguish the implications of maintenance when calculating
child support in both Supreme and Family Court cases.
This measure, which would have no fiscal impact upon the State, would
take effect on the ninetieth day after it shall have become a law.
LEGISLATIVE HISTORY:
None. New proposal.
STATE OF NEW YORK
________________________________________________________________________
7637
2015-2016 Regular Sessions
IN ASSEMBLY
May 20, 2015
___________
Introduced by M. of A. SEAWRIGHT, WEINSTEIN -- (at request of the Office
of Court Administration) -- read once and referred to the Committee on
Judiciary
AN ACT to amend the family court act and the domestic relations law, in
relation to spousal maintenance and child support in supreme and fami-
ly court
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subclauses (G) and (H) of clause (iii) of subparagraph 5 of
2 paragraph (b) of subdivision 1 of section 413 of the family court act,
3 as added by chapter 567 of the laws of 1989, are amended and a new
4 subclause (I) is added to read as follows:
5 (G) fellowships and stipends, [and]
6 (H) annuity payments[;], and
7 (I) alimony or maintenance actually paid or to be paid to a spouse who
8 is a party to the instant action pursuant to an existing court order or
9 contained in the order to be entered by the court, or pursuant to a
10 validly executed written agreement, in which event the order or agree-
11 ment shall provide for a specific adjustment, in accordance with this
12 subdivision, in the amount of child support payable upon the termination
13 of alimony or maintenance to such spouse; provided, however, that the
14 specific adjustment in the amount of child support is without prejudice
15 to either party's right to seek a modification in accordance with subdi-
16 vision three of section four hundred fifty-one of this article. In an
17 action or proceeding to modify an order of child support, including an
18 order incorporating without merging an agreement, issued prior to the
19 effective date of this subclause, the provisions of this subclause shall
20 not, by themselves, constitute a substantial change of circumstances
21 pursuant to paragraph (a) of subdivision three of section four hundred
22 fifty-one of this article.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09654-03-5
A. 7637 2
1 § 2. Subclause (C) of clause (vii) of subparagraph 5 of paragraph (b)
2 of subdivision 1 of section 413 of the family court act, as added by
3 chapter 567 of the laws of 1989, is amended to read as follows:
4 (C) alimony or maintenance actually paid or to be paid to a spouse
5 [that] who is a party to the instant action pursuant to an existing
6 court order or contained in the order to be entered by the court, or
7 pursuant to a validly executed written agreement, [provided] in which
8 event the order or agreement [provides] shall provide for a specific
9 adjustment, in accordance with this subdivision, in the amount of child
10 support payable upon the termination of alimony or maintenance to such
11 spouse[,]; provided, however, that the specific adjustment in the amount
12 of child support is without prejudice to either party's right to seek a
13 modification in accordance with subdivision three of section four
14 hundred fifty-one of this article. In an action or proceeding to modify
15 an order of child support, including an order incorporating without
16 merging an agreement, issued prior to the effective date of this
17 subclause, the provisions of this subclause shall not, by themselves,
18 constitute a substantial change of circumstances pursuant to paragraph
19 (a) of subdivision three of section four hundred fifty-one of this arti-
20 cle.
21 § 3. Subclauses (G) and (H) of clause (iii) of subparagraph 5 of para-
22 graph (b) of subdivision 1-b of section 240 of the domestic relations
23 law, as added by chapter 567 of the laws of 1989, are amended and a new
24 subclause (I) is added to read as follows:
25 (G) fellowships and stipends, [and]
26 (H) annuity payments[;], and
27 (I) alimony or maintenance actually paid or to be paid to a spouse who
28 is a party to the instant action pursuant to an existing court order or
29 contained in the order to be entered by the court, or pursuant to a
30 validly executed written agreement, in which event the order or agree-
31 ment shall provide for a specific adjustment, in accordance with this
32 subdivision, in the amount of child support payable upon the termination
33 of alimony or maintenance to such spouse; provided, however, that the
34 specific adjustment in the amount of child support is without prejudice
35 to either party's right to seek a modification in accordance with
36 subparagraph two of paragraph b of subdivision nine of part B of section
37 two hundred thirty-six of this article. In an action or proceeding to
38 modify an order of child support, including an order incorporating with-
39 out merging an agreement, issued prior to the effective date of this
40 subclause, the provisions of this subclause shall not, by themselves,
41 constitute a substantial change of circumstances pursuant to paragraph b
42 of subdivision nine of part B of section two hundred thirty-six of this
43 article.
44 § 4. Subclause (C) of clause (vii) of subparagraph 5 of paragraph (b)
45 of subdivision 1-b of section 240 of the domestic relations law, as
46 added by chapter 567 of the laws of 1989, is amended to read as follows:
47 (C) alimony or maintenance actually paid or to be paid to a spouse
48 [that] who is a party to the instant action pursuant to an existing
49 court order or contained in the order to be entered by the court, or
50 pursuant to a validly executed written agreement, [provided] in which
51 event the order or agreement [provides] shall provide for a specific
52 adjustment, in accordance with this subdivision, in the amount of child
53 support payable upon the termination of alimony or maintenance to such
54 spouse[,]; provided, however, that the specific adjustment in the amount
55 of child support is without prejudice to either party's right to seek a
56 modification in accordance with subparagraph two of paragraph b of
A. 7637 3
1 subdivision nine of part B of section two hundred thirty-six of this
2 article. In an action or proceeding to modify an order of child
3 support, including an order incorporating without merging an agreement,
4 issued prior to the effective date of this subclause, the provisions of
5 this subclause shall not, by themselves, constitute a substantial change
6 of circumstances pursuant to paragraph b of subdivision nine of part B
7 of section two hundred thirty-six of this article.
8 § 5. This act shall take effect on the ninetieth day after it shall
9 have become a law.
