NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9606A
SPONSOR: Weinstein (MS) TITLE OF BILL: An act to amend the domestic relations law, in
relation to the duration and amount of maintenance; and to amend the
family court act, in relation to spousal support
PURPOSE OF BILL:
To continue taking steps toward reforming the state's spousal mainte-
nance awards in connection with temporary and final spousal maintenance
awards, providing consistency and predictability in calculating mainte-
nance awards; and to update spousal support awards law to mirror the
revised provisions for temporary maintenance awards.
SUMMARY OF PROVISIONS OF BILL:
Section 1. Subdivision 5-a of Part B of section 236 of the Domestic
Relations Law (DRL) as added by chapter 371 of the laws of 2010, is
amended to clarify the calculation of the guideline amount of temporary
maintenance awards and to revise the factors to be considered to adjust
the guideline amount where the court finds the guideline amount is
unjust or inappropriate. This section also reduces the income cap from
$500,000 to $200,000.
Section 2. Subdivision 6 of part B of section 236 of the DRL, as amended
by chapter 371 of the laws of 2010, is amended to provide, in determin-
ing post-divorce maintenance amounts, provisions that track the
provisions for determining temporary maintenance. This section also
provides for the guideline duration of post-divorce maintenance.
Section 3. Subparagraph 1 of paragraph b of subdivision 9 of Part B of
section 236 of the DRL, as amended by chapter 182 of the laws of 2010,
is amended to make conforming terminology changes such as replacing the
term "recipient" with "payee". It is also amended to provide that a
court may annul or modify a prior order or judgment for maintenance upon
a showing of a substantial change in circumstances, including actual
retirement of the payor if the retirement results in substantial change
in financial circumstances.
Section 4. Section 12 of the Family Court Act, as amended by chapter 281
of the laws of 1980, is amended to mirror the provisions of temporary
maintenance set forth in subdivision 5-a of Part B of section 236 of the
DRL.
Section 5. Paragraph a of subdivision 1 of Part B of section 236 of the
DRL is amended to make conforming terminology changes such as replacing
the term "recipient" with "payee".
Section 6. Subparagraph 7 of paragraph d of subdivision 5 of Part B of
section 236 of the DRL, as amended by chapter 281 of the laws of 1980
and as renumbered by chapter 229 of the laws of 2009, is amended to
provide that in determining an equitable disposition of property pursu-
ant to subdivision 5(c) of Part B of section 236 of the DRL, the court
shall not consider as marital property subject to distribution the value
of a spouse's enhanced earning capacity arising from a license, degree,
celebrity goodwill, or career enhancement. However, the court, in arriv-
ing at an equitable division of marital property, shall consider the
direct or indirect contributions, to the development during the marriage
of the enhanced earning capacity of the other spouse.
Section 7. Section 248 of the DRL is amended to introduce gender-neutral
language.
Section 8. Provides for the effective date.
JUSTIFICATION:
This bill completes reforms of New York divorce laws begun in 2010 with
the adoption of standards for temporary maintenance similar to the stan-
dards used for child support. The bill makes several kinds changes to
current law. First, it amends the provisions for temporary maintenance
enacted in 2010 by lowering the provision's income cap and by making
technical and clarifying amendments, including restating in simpler
language the method for calculating the temporary maintenance guideline
amount. Second, the bill adopts maintenance standards for Post-divorce
maintenance awards similar to those for temporary maintenance awards.
Third, the bill extends the concept of guidelines to the Family Court
Act's provisions for spousal support. Fourth, within the context of
comprehensive legislation providing for post-divorce maintenance guide-
lines, the bill eliminates increased earning capacity from consideration
in the distribution of marital assets. Finally, the bill conforms other
portions of the Domestic Relations Law to make them consistent with the
bill's provisions for post-divorce maintenance.
In 2010, New York State adopted standards for temporary maintenance
similar to the standards for child support in the Child Support Stand-
ards Act in use since 1989. This reform was a response to serious
concerns about the ability of the State's then existing spousal mainte-
nance provisions to produce equitable results. Spousal maintenance
awards at the time were inconsistent and unpredictable, creating ques-
tions about the fairness of awards and discouraging settlements. Liti-
gation to establish maintenance was lengthy and complex. For parties who
could not afford protracted litigation, maintenance was an illusory
remedy.
The 2010 reforms began the process of incorporating into provisions for
spousal maintenance the concept of marriage as an economic partnership,
an idea that New York State adopted for equitable distribution in 1980.
Divorce remedies that look to the economic partnership premise base
maintenance on the recognition that parties make different contributions
to a marriage, that only some of those contributions are financial, and
that some contributions, particularly of those caring for children and a
household, diminish post-divorce earning prospects.
As stated in the justification for the 2010 temporary maintenance legis-
lation, a commission of the American Academy of Matrimonial Lawyers
(AAML Commission) noted that various jurisdictions had adopted a formula
approach to determining spousal support. The AAML Commission recommended
use of a formula based on two universal factors, the income of the
parties and the length of the marriage. Additionally, the American Law
Institute, in "Principles of the Law of Family Dissolution; Analysis and
Recommendations" (2000) of the American Law Institute (ALI Principles),
identified economic losses that spouses suffer at the end of marriage.
These losses often take the form of lower earning capacity for spouses
who are primary caretakers of children. The ALI Principles suggest that
these losses be shared through a formula for determining post-marital
spousal support that takes into account the incomes of the parties and
the length of the marriage.
The 2010 temporary maintenance law provided not just consistency but
flexibility through provisions allowing the court to adjust guideline
amounts up or down when numbers produced by the formula were inappropri-
ate or unjust. Also, the law provided a list of factors for the court to
consider when making adjustments and required courts to provide written
explanations for their justifications.
Attorneys representing low and middle income parties report that
clients, who in spite of great need would have been unable to undertake
the litigation necessary for a maintenance award under the vague
provisions of the previous law, have been receiving temporary mainte-
nance as a result of the law enacted in 2010. These awards are the
result of judicial rulings under the new law and, equally importantly,
of settlements informed by,clear standards allowing lawyers to predict
litigation outcomes. Courts have taken advantage of the provisions
providing flexibility and have adjusted awards when necessary for equity
in particular cases. Dozens of decisions have been published.
The 2010 law also directed the New York State Law Revision Commission
(LRC) to, among other things;
"review the maintenance laws of the State, including the way in which
they are administered to determine the impact of these laws on post
marital economic disparities and the effectiveness of such laws and
their administration in achieving the state's policy goals and objec-
tives of ensure that the economic consequences of a divorce are fairly
and equitably shared by the divorcing couple." (Sec. 3 of Chapter 371 of
the Laws of 2010.)
Following a study, including interviews with stakeholders and interested
parties, a roundtable discussion with stakeholders, investigation of
maintenance laws in other jurisdictions, and analysis of data on mainte-
nance awards in nine counties in the State, the LRC issued its final
report on May 15, 2013 of its findings, conclusions and recommendations
(the LRC Report). The LRC Report, among other things, recommended that
the mathematical formula set forth in the 2010 law for the calculation
of the guideline amount of temporary maintenance be continued and that a
mathematical formula be similarly used to calculate the guideline amount
of post-divorce maintenance, with consideration by the court of a set of
factors to determine whether the guideline amount of post-divorce main-
tenance should be increased where the parties' income exceeds the income
cap. The LRC also recommended that the provisions providing for spousal
support in Family Court proceedings be amended to mirror the temporary
maintenance law, revised as recommended by the LRC.
This bill incorporates most of the recommendations set forth in the LRC
Report.
Section one of this bill makes small adjustments that refine, clarify,
and streamline the current temporary maintenance standards law. The
provisions for calculating the formula amount have been simplified.
Factors for judges to consider when adjusting awards have been condensed
and clarified, and factors inapplicable to temporary maintenance
removed. Provisions confirming judicial practice, concerning allocation
of responsibility for family expenses and the independence of decisions
on temporary and post-divorce maintenance, have been added. The bill
retains provisions for courts.to consider the length of marriage in
setting the duration of maintenance so that judges hearing cases Involv-
ing short-term marriage may terminate maintenance before the divorce is
final. And, last, the bill lowers the income cap used in temporary main-
tenance provisions from $500,000 to $200,000. The $200,000 cap takes
into account the high cost of litigating a right to maintenance without
the kind of simplified method provided for families by maintenance
guidelines. This cost is sufficiently high so that only the wealthiest
divorcing spouses can afford to litigate maintenance.
Section two of this bill extends the benefits of the temporary mainte-
nance provisions to post-divorce maintenance awards. Post-divorce main-
tenance awards remain the "wild card" in divorce litigation.
Awards are still inconsistent and unpredictable, and lengthy, expensive
litigation is still necessary to achieve equitable results. Using
guidelines based on a formula with flexibility for adjustments up and
down for final maintenance will change this.
Much of the second section of the bill tracks the language of the tempo-
rary maintenance law, including the restated and clarified provisions
set forth in this bill for calculating the guideline amount of a tempo-
rary maintenance award. The major differences between the temporary and
post-divorce maintenance provisions are the provisions on duration.
Temporary maintenance usually lasts until a legal case concludes with a
final judgment of divorce, except where courts terminate temporary main-
tenance prior to the divorce becoming final based on consideration of
the length of marriage as mentioned above. Post-divorce maintenance
needs its own clear end point, and this bill proscribes a duration
calculated as a percent of the length of the marriage. Like the recom-
mendations on duration in the AAML Commission and the ALI Principles,
the longer the marriage, the longer the time post-divorce maintenance
will be paid. The bill also provides that maintenance payments will end
on the death or remarriage of either party.
The bill's spousal support provisions closely track provisions for
temporary maintenance and make available to vulnerable spouses the same
kind consistent, predictable results that maintenance guidelines provide
to divorcing couples.
Section six amends the Domestic Relations Law to eliminate a form of
marital property, enhanced earning capacity, recognized by the Court of
Appeals in O'Brien v O'Brien, 66 NY 2d 576 (1985). The provisions in the
bill providing for the use of formulaic guidelines to calculate post-di-
vorce maintenance for amount and duration allow the post-divorce mainte-
nance outcomes to substitute for treating enhanced earning capacity as a
marital asset. To eliminate enhanced earning capacity as a marital asset
without these critical reforms to our maintenance laws would be a great
in justice to spouses who have sacrificed their education and/or careers
for the benefit of the marital partnership.
Section seven amends the Domestic Relation Law relating to applications
made to the court by a spouse when their former spouse is cohabitating
with another person and is holding themselves out as a spouse of that
person. The bill makes gender-neutral changes to this section of the
Domestic Relation Law.
LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall become a
law.
