Establishes the provision of temporary maintenance in matrimonial actions; directs the law revision commission to study the effects of divorce and maintenance.
STATE OF NEW YORK
________________________________________________________________________
8390
IN SENATE
June 28, 2010
___________
Introduced by Sen. HASSELL-THOMPSON -- read twice and ordered printed,
and when printed to be committed to the Committee on Rules
AN ACT to amend the domestic relations law, in relation to providing for
temporary maintenance awards, and revising the factors for final main-
tenance awards; and directing the law revision commission to study the
economic consequences of divorce and maintenance actions
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Part B of section 236 of the domestic relations law is
2 amended by adding a new subdivision 5-a to read as follows:
3 5-a. Temporary maintenance awards. a. Except where the parties have
4 entered into an agreement pursuant to subdivision three of this part
5 providing for maintenance, in any matrimonial action the court shall
6 make its award for temporary maintenance pursuant to the provisions of
7 this subdivision.
8 b. For purposes of this subdivision, the following definitions shall
9 be used:
10 (1) "Payor" shall mean the spouse with the higher income.
11 (2) "Payee" shall mean the spouse with the lower income.
12 (3) "Length of marriage" shall mean the period from the date of
13 marriage until the date of commencement of action.
14 (4) "Income" shall mean:
15 (a) income as defined in the child support standards act and codified
16 in section two hundred forty of this article and section four hundred
17 thirteen of the family court act; and
18 (b) income from income producing property to be distributed pursuant
19 to subdivision five of this part.
20 (5) "Income cap" shall mean up to and including five hundred thousand
21 dollars of the payor's annual income; provided, however, beginning Janu-
22 ary thirty-first, two thousand twelve and every two years thereafter,
23 the payor's annual income amount shall increase by the product of the
24 average annual percentage changes in the consumer price index for all
25 urban consumers (CPI-U) as published by the United States department of
26 labor bureau of labor statistics for the two year period rounded to the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD17166-11-0
S. 8390 2
1 nearest one thousand dollars. The office of court administration shall
2 determine and publish the income cap.
3 (6) "Guideline amount of temporary maintenance" shall mean the sum
4 derived by the application of paragraph c of this subdivision.
5 (7) "Guideline duration" shall mean the durational period determined
6 by the application of paragraph d of this subdivision.
7 (8) "Presumptive award" shall mean the guideline amount of the tempo-
8 rary maintenance award for the guideline duration prior to the court's
9 application of any adjustment factors as provided in subparagraph one of
10 paragraph e of this subdivision.
11 (9) "Self-support reserve" shall mean the self-support reserve as
12 defined in the child support standards act and codified in section two
13 hundred forty of this article and section four hundred thirteen of the
14 family court act.
15 c. The court shall determine the guideline amount of temporary mainte-
16 nance in accordance with the provisions of this paragraph after deter-
17 mining the income of the parties:
18 (1) Where the payor's income is up to and including the income cap:
19 (a) the court shall subtract twenty percent of the income of the payee
20 from thirty percent of the income up to the income cap of the payor.
21 (b) the court shall then multiply the sum of the payor's income up to
22 and including the income cap and all of the payee's income by forty
23 percent.
24 (c) the court shall subtract the income of the payee from the amount
25 derived from clause (b) of this subparagraph.
26 (d) the guideline amount of temporary maintenance shall be the lower
27 of the amounts determined by clauses (a) and (c) of this subparagraph;
28 if the amount determined by clause (c) of this subparagraph is less than
29 or equal to zero, the guideline amount shall be zero dollars.
30 (2) Where the income of the payor exceeds the income cap:
31 (a) the court shall determine the guideline amount of temporary main-
32 tenance for that portion of the payor's income that is up to and includ-
33 ing the income cap according to subparagraph one of this paragraph, and,
34 for the payor's income in excess of the income cap, the court shall
35 determine any additional guideline amount of temporary maintenance
36 through consideration of the following factors:
37 (i) the length of the marriage;
38 (ii) the substantial differences in the incomes of the parties;
39 (iii) the standard of living of the parties established during the
40 marriage;
41 (iv) the age and health of the parties;
42 (v) the present and future earning capacity of the parties;
43 (vi) the need of one party to incur education or training expenses;
44 (vii) the wasteful dissipation of marital property;
45 (viii) the transfer or encumbrance made in contemplation of a matrimo-
46 nial action without fair consideration;
47 (ix) the existence and duration of a pre-marital joint household or a
48 pre-divorce separate household;
49 (x) acts by one party against another that have inhibited or continue
50 to inhibit a party's earning capacity or ability to obtain meaningful
51 employment. Such acts include but are not limited to acts of domestic
52 violence as provided in section four hundred fifty-nine-a of the social
53 services law;
54 (xi) the availability and cost of medical insurance for the parties;
55 (xii) the care of the children or stepchildren, disabled adult chil-
56 dren or stepchildren, elderly parents or in-laws that has inhibited or
S. 8390 3
1 continues to inhibit a party's earning capacity or ability to obtain
2 meaningful employment;
3 (xiii) the inability of one party to obtain meaningful employment due
4 to age or absence from the workforce;
5 (xiv) the need to pay for exceptional additional expenses for the
6 child or children, including, but not limited to, schooling, day care
7 and medical treatment;
8 (xv) the tax consequences to each party;
9 (xvi) marital property subject to distribution pursuant to subdivision
10 five of this part;
11 (xvii) the reduced or lost earning capacity of the party seeking
12 temporary maintenance as a result of having foregone or delayed educa-
13 tion, training, employment or career opportunities during the marriage;
14 (xviii) the contributions and services of the party seeking temporary
15 maintenance as a spouse, parent, wage earner and homemaker and to the
16 career or career potential of the other party; and
17 (xix) any other factor which the court shall expressly find to be just
18 and proper.
19 (b) In any decision made pursuant to this subparagraph, the court
20 shall set forth the factors it considered and the reasons for its deci-
21 sion. Such written order may not be waived by either party or counsel.
22 (3) Notwithstanding the provisions of this paragraph, where the guide-
23 line amount of temporary maintenance would reduce the payor's income
24 below the self-support reserve for a single person, the presumptive
25 amount of the guideline amount of temporary maintenance shall be the
26 difference between the payor's income and the self-support reserve. If
27 the payor's income is below the self-support reserve, there is a rebutt-
28 able presumption that no temporary maintenance is awarded.
29 d. The court shall determine the guideline duration of temporary main-
30 tenance by considering the length of the marriage. Temporary maintenance
31 shall terminate upon the issuance of the final award of maintenance or
32 the death of either party, whichever occurs first.
33 e. (1) The court shall order the presumptive award of temporary main-
34 tenance in accordance with paragraphs c and d of this subdivision,
35 unless the court finds that the presumptive award is unjust or inappro-
36 priate and adjusts the presumptive award of temporary maintenance
37 accordingly based upon consideration of the following factors:
38 (a) the standard of living of the parties established during the
39 marriage;
40 (b) the age and health of the parties;
41 (c) the earning capacity of the parties;
42 (d) the need of one party to incur education or training expenses;
43 (e) the wasteful dissipation of marital property;
44 (f) the transfer or encumbrance made in contemplation of a matrimonial
45 action without fair consideration;
46 (g) the existence and duration of a pre-marital joint household or a
47 pre-divorce separate household;
48 (h) acts by one party against another that have inhibited or continue
49 to inhibit a party's earning capacity or ability to obtain meaningful
50 employment. Such acts include but are not limited to acts of domestic
51 violence as provided in section four hundred fifty-nine-a of the social
52 services law;
53 (i) the availability and cost of medical insurance for the parties;
54 (j) the care of the children or stepchildren, disabled adult children
55 or stepchildren, elderly parents or in-laws that has inhibited or
S. 8390 4
1 continues to inhibit a party's earning capacity or ability to obtain
2 meaningful employment;
3 (k) the inability of one party to obtain meaningful employment due to
4 age or absence from the workforce;
5 (l) the need to pay for exceptional additional expenses for the child
6 or children, including, but not limited to, schooling, day care and
7 medical treatment;
8 (m) the tax consequences to each party;
9 (n) marital property subject to distribution pursuant to subdivision
10 five of this part;
11 (o) the reduced or lost earning capacity of the party seeking tempo-
12 rary maintenance as a result of having foregone or delayed education,
13 training, employment or career opportunities during the marriage;
14 (p) the contributions and services of the party seeking temporary
15 maintenance as a spouse, parent, wage earner and homemaker and to the
16 career or career potential of the other party; and
17 (q) any other factor which the court shall expressly find to be just
18 and proper.
19 (2) Where the court finds that the presumptive award of temporary
20 maintenance is unjust or inappropriate and the court adjusts the
21 presumptive award of temporary maintenance pursuant to this paragraph,
22 the court shall set forth, in a written order, the amount of the unad-
23 justed presumptive award of temporary maintenance, the factors it
24 considered, and the reasons that the court adjusted the presumptive
25 award of temporary maintenance. Such written order shall not be waived
26 by either party or counsel.
27 (3) Where either or both parties are unrepresented, the court shall
28 not enter a temporary maintenance order unless the unrepresented party
29 or parties have been informed of the presumptive award of temporary
30 maintenance.
31 f. A validly executed agreement or stipulation voluntarily entered
32 into between the parties in an action commenced after the effective date
33 of this subdivision presented to the court for incorporation in an order
34 shall include a provision stating that the parties have been advised of
35 the provisions of this subdivision, and that the presumptive award
36 provided for therein results in the correct amount of temporary mainte-
37 nance. In the event that such agreement or stipulation deviates from the
38 presumptive award of temporary maintenance, the agreement or stipulation
39 must specify the amount that such presumptive award of temporary mainte-
40 nance would have been and the reason or reasons that such agreement or
41 stipulation does not provide for payment of that amount. Such provision
42 may not be waived by either party or counsel. Nothing contained in this
43 subdivision shall be construed to alter the rights of the parties to
44 voluntarily enter into validly executed agreements or stipulations which
45 deviate from the presumptive award of temporary maintenance provided
46 such agreements or stipulations comply with the provisions of this
47 subdivision. The court shall, however, retain discretion with respect to
48 temporary, and post-divorce maintenance awards pursuant to this section.
49 Any court order incorporating a validly executed agreement or stipu-
50 lation which deviates from the presumptive award of temporary mainte-
51 nance shall set forth the court's reasons for such deviation.
52 g. When a party has defaulted and/or the court is otherwise presented
53 with insufficient evidence to determine gross income, the court shall
54 order the temporary maintenance award based upon the needs of the payee
55 or the standard of living of the parties prior to commencement of the
56 divorce action, whichever is greater. Such order may be retroactively
S. 8390 5
1 modified upward without a showing of change in circumstances upon a
2 showing of newly discovered or obtained evidence.
3 h. In any action or proceeding for modification of an order of mainte-
4 nance or alimony existing prior to the effective date of this subdivi-
5 sion, brought pursuant to this article, the temporary maintenance guide-
6 lines set forth in this subdivision shall not constitute a change of
7 circumstances warranting modification of such support order.
8 i. In any decision made pursuant to this subdivision the court shall,
9 where appropriate, consider the effect of a barrier to remarriage, as
10 defined in subdivision six of section two hundred fifty-three of this
11 article, on the factors enumerated in this subdivision.
12 § 2. Subdivision 6 of part B of section 236 of the domestic relations
13 law, as amended by chapter 884 of the laws of 1986, subparagraph 10 as
14 amended, subparagraph 11 as added and subparagraph 12 of paragraph a as
15 renumbered by chapter 229 of the laws of 2009, paragraph d as added by
16 chapter 415 of the laws of 1992, is amended to read as follows:
17 6. [Maintenance] Post-divorce maintenance awards. a. Except where the
18 parties have entered into an agreement pursuant to subdivision three of
19 this part providing for maintenance, in any matrimonial action the court
20 may order [temporary maintenance or] maintenance in such amount as
21 justice requires, having regard for the standard of living of the
22 parties established during the marriage, whether the party in whose
23 favor maintenance is granted lacks sufficient property and income to
24 provide for his or her reasonable needs and whether the other party has
25 sufficient property or income to provide for the reasonable needs of the
26 other and the circumstances of the case and of the respective parties.
27 Such order shall be effective as of the date of the application there-
28 for, and any retroactive amount of maintenance due shall be paid in one
29 sum or periodic sums, as the court shall direct, taking into account any
30 amount of temporary maintenance which has been paid. In determining the
31 amount and duration of maintenance the court shall consider:
32 (1) the income and property of the respective parties including mari-
33 tal property distributed pursuant to subdivision five of this part;
34 (2) the [duration] length of the marriage [and];
35 (3) the age and health of both parties;
36 [(3)] (4) the present and future earning capacity of both parties;
37 [(4)] (5) the need of one party to incur education or training
38 expenses;
39 (6) the existence and duration of a pre-marital joint household or a
40 pre-divorce separate household;
41 (7) acts by one party against another that have inhibited or continue
42 to inhibit a party's earning capacity or ability to obtain meaningful
43 employment. Such acts include but are not limited to acts of domestic
44 violence as provided in section four hundred fifty-nine-a of the social
45 services law;
46 (8) the ability of the party seeking maintenance to become self-sup-
47 porting and, if applicable, the period of time and training necessary
48 therefor;
49 [(5)] (9) reduced or lost lifetime earning capacity of the party seek-
50 ing maintenance as a result of having foregone or delayed education,
51 training, employment, or career opportunities during the marriage;
52 [(6)] (10) the presence of children of the marriage in the respective
53 homes of the parties;
54 [(7)] (11) the care of the children or stepchildren, disabled adult
55 children or stepchildren, elderly parents or in-laws that has inhibited
56 or continues to inhibit a party's earning capacity;
S. 8390 6
1 (12) the inability of one party to obtain meaningful employment due to
2 age or absence from the workforce;
3 (13) the need to pay for exceptional additional expenses for the
4 child/children, including but not limited to, schooling, day care and
5 medical treatment;
6 (14) the tax consequences to each party;
7 [(8)] (15) the equitable distribution of marital property;
8 (16) contributions and services of the party seeking maintenance as a
9 spouse, parent, wage earner and homemaker, and to the career or career
10 potential of the other party;
11 [(9)] (17) the wasteful dissipation of marital property by either
12 spouse;
13 [(10) any] (18) the transfer or encumbrance made in contemplation of a
14 matrimonial action without fair consideration;
15 [(11)] (19) the loss of health insurance benefits upon dissolution of
16 the marriage, and the availability and cost of medical insurance for the
17 parties; and
18 [(12)] (20) any other factor which the court shall expressly find to
19 be just and proper.
20 b. In any decision made pursuant to this subdivision, the court shall
21 set forth the factors it considered and the reasons for its decision and
22 such may not be waived by either party or counsel.
23 c. The court may award permanent maintenance, but an award of mainte-
24 nance shall terminate upon the death of either party or upon the recipi-
25 ent's valid or invalid marriage, or upon modification pursuant to para-
26 graph [(b)] b of subdivision nine of [section two hundred thirty-six of]
27 this part or section two hundred forty-eight of this chapter.
28 d. In any decision made pursuant to this subdivision the court shall,
29 where appropriate, consider the effect of a barrier to remarriage, as
30 defined in subdivision six of section two hundred fifty-three of this
31 article, on the factors enumerated in paragraph a of this subdivision.
32 § 3. Part B of section 236 of the domestic relations law is amended by
33 adding a new subdivision 6-a to read as follows:
34 6-a. Law revision commission study. a. The legislature hereby finds
35 and declares it to be the policy of the state that it is necessary to
36 achieve equitable outcomes when families divorce and it is important to
37 ensure that the economic consequences of a divorce are fairly shared by
38 divorcing couples. Serious concerns have been raised that the implemen-
39 tation of New York state's maintenance laws have not resulted in equita-
40 ble results. Maintenance is often not granted and where it is granted,
41 the results are inconsistent and unpredictable. This raises serious
42 concerns about the ability of our current maintenance laws to achieve
43 equitable and fair outcomes.
44 The legislature further finds a comprehensive review of the provisions
45 of our state's maintenance laws should be undertaken. It has been thirty
46 years since the legislature significantly reformed our state's divorce
47 laws by enacting equitable distribution of marital property and intro-
48 duced the concept of maintenance to replace alimony. Concerns that the
49 implementation of our maintenance laws have not resulted in equitable
50 results compel the need for a review of these laws.
51 b. The law revision commission is hereby directed to:
52 (1) review and assess the economic consequences of divorce on the
53 parties;
54 (2) review the maintenance laws of the state, including the way in
55 which they are administered to determine the impact of these laws on
56 post marital economic disparities, and the effectiveness of such laws
S. 8390 7
1 and their administration in achieving the state's policy goals and
2 objectives of ensuring that the economic consequences of a divorce are
3 fairly and equitably shared by the divorcing couple; and
4 (3) make recommendations to the legislature, including such proposed
5 revisions of such laws as it determines necessary to achieve these goals
6 and objectives.
7 c. The law revision commission shall make a preliminary report to the
8 legislature and the governor of its findings, conclusions, and any
9 recommendations not later than nine months from the effective date of
10 this subdivision, and a final report of its findings, conclusions and
11 recommendations not later than December thirty-first, two thousand elev-
12 en.
13 § 4. Paragraph a of subdivision 1 of part B of section 236 of the
14 domestic relations law, as amended by chapter 884 of the laws of 1986,
15 is amended to read as follows:
16 a. The term "maintenance" shall mean payments provided for in a valid
17 agreement between the parties or awarded by the court in accordance with
18 the provisions of [subdivision] subdivisions five-a and six of this
19 part, to be paid at fixed intervals for a definite or indefinite period
20 of time, but an award of maintenance shall terminate upon the death of
21 either party or upon the recipient's valid or invalid marriage, or upon
22 modification pursuant to paragraph (b) of subdivision nine of section
23 two hundred thirty-six of this part or section two hundred forty-eight
24 of this chapter.
25 § 5. The chief administrator of the courts shall promulgate all rules
26 necessary to implement the provisions of this act.
27 § 6. This act shall take effect immediately; provided, however, that
28 sections one, two and four of this act shall take effect on the sixtieth
29 day after this act shall have become a law and shall apply to matrimoni-
30 al actions commenced on or after the effective date of such sections.
