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A10984 Summary:

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A10984 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                        10984--B
 
                   IN ASSEMBLY
 
                                       May 5, 2010
                                       ___________
 
        Introduced  by  M.  of A. PAULIN, WEINSTEIN -- read once and referred to
          the Committee on Judiciary  --  committee  discharged,  bill  amended,
          ordered  reprinted  as  amended  and  recommitted to said committee --
          again reported from said committee with amendments, ordered  reprinted
          as amended and recommitted to said committee
 
        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
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD17166-10-0
        A. 10984--B                         2
 
     1  average  annual  percentage  changes in the consumer price index for all
     2  urban consumers (CPI-U) as published by the United States department  of

     3  labor  bureau of labor statistics for the two year period rounded to the
     4  nearest  one  thousand dollars. The office of court administration shall
     5  determine and publish the income cap.
     6    (6) "Guideline amount of temporary maintenance"  shall  mean  the  sum
     7  derived by the application of paragraph c of this subdivision.
     8    (7)  "Guideline  duration" shall mean the durational period determined
     9  by the application of paragraph d of this subdivision.
    10    (8) "Presumptive award" shall mean the guideline amount of the  tempo-
    11  rary  maintenance  award for the guideline duration prior to the court's
    12  application of any adjustment factors as provided in subparagraph one of
    13  paragraph e of this subdivision.

    14    (9) "Self-support reserve" shall  mean  the  self-support  reserve  as
    15  defined  in  the child support standards act and codified in section two
    16  hundred forty of this article and section four hundred thirteen  of  the
    17  family court act.
    18    c. The court shall determine the guideline amount of temporary mainte-
    19  nance  in  accordance with the provisions of this paragraph after deter-
    20  mining the income of the parties:
    21    (1) Where the payor's income is up to and including the income cap:
    22    (a) the court shall subtract twenty percent of the income of the payee
    23  from thirty percent of the income up to the income cap of the payor.
    24    (b) the court shall then multiply the sum of the payor's income up  to

    25  and  including  the  income  cap  and all of the payee's income by forty
    26  percent.
    27    (c) the court shall subtract the income of the payee from  the  amount
    28  derived from clause (b) of this subparagraph.
    29    (d)  the  guideline amount of temporary maintenance shall be the lower
    30  of the amounts determined by clauses (a) and (c) of  this  subparagraph;
    31  if the amount determined by clause (c) of this subparagraph is less than
    32  or equal to zero, the guideline amount shall be zero dollars.
    33    (2) Where the income of the payor exceeds the income cap:
    34    (a)  the court shall determine the guideline amount of temporary main-
    35  tenance for that portion of the payor's income that is up to and includ-

    36  ing the income cap according to subparagraph one of this paragraph, and,
    37  for the payor's income in excess of the  income  cap,  the  court  shall
    38  determine  any  additional  guideline  amount  of  temporary maintenance
    39  through consideration of the following factors:
    40    (i) the length of the marriage;
    41    (ii) the substantial differences in the incomes of the parties;
    42    (iii) the standard of living of the  parties  established  during  the
    43  marriage;
    44    (iv) the age and health of the parties;
    45    (v) the present and future earning capacity of the parties;
    46    (vi) the need of one party to incur education or training expenses;
    47    (vii) the wasteful dissipation of marital property;

    48    (viii) the transfer or encumbrance made in contemplation of a matrimo-
    49  nial action without fair consideration;
    50    (ix)  the existence and duration of a pre-marital joint household or a
    51  pre-divorce separate household;
    52    (x) acts by one party against another that have inhibited or  continue
    53  to  inhibit  a  party's earning capacity or ability to obtain meaningful
    54  employment. Such acts include but are not limited to  acts  of  domestic
    55  violence  as provided in section four hundred fifty-nine-a of the social
    56  services law;
        A. 10984--B                         3
 
     1    (xi) the availability and cost of medical insurance for the parties;
     2    (xii)  the  care of the children or stepchildren, disabled adult chil-

     3  dren or stepchildren, elderly parents or in-laws that has  inhibited  or
     4  continues  to  inhibit  a  party's earning capacity or ability to obtain
     5  meaningful employment;
     6    (xiii) the inability of one party to obtain meaningful employment  due
     7  to age or absence from the workforce;
     8    (xiv)  the  need  to  pay  for exceptional additional expenses for the
     9  child or children, including, but not limited to,  schooling,  day  care
    10  and medical treatment;
    11    (xv) the tax consequences to each party;
    12    (xvi) marital property subject to distribution pursuant to subdivision
    13  five of this part;
    14    (xvii)  the  reduced  or  lost  earning  capacity of the party seeking

    15  temporary maintenance as a result of having foregone or  delayed  educa-
    16  tion, training, employment or career opportunities during the marriage;
    17    (xviii)  the contributions and services of the party seeking temporary
    18  maintenance as a spouse, parent, wage earner and homemaker  and  to  the
    19  career or career potential of the other party; and
    20    (xix) any other factor which the court shall expressly find to be just
    21  and proper.
    22    (b)  In  any  decision  made  pursuant to this subparagraph, the court
    23  shall set forth the factors it considered and the reasons for its  deci-
    24  sion. Such written order may not be waived by either party or counsel.
    25    (3) Notwithstanding the provisions of this paragraph, where the guide-

    26  line  amount  of  temporary  maintenance would reduce the payor's income
    27  below the self-support reserve for  a  single  person,  the  presumptive
    28  amount  of  the  guideline  amount of temporary maintenance shall be the
    29  difference between the payor's income and the self-support  reserve.  If
    30  the payor's income is below the self-support reserve, there is a rebutt-
    31  able presumption that no temporary maintenance is awarded.
    32    d. The court shall determine the guideline duration of temporary main-
    33  tenance by considering the length of the marriage. Temporary maintenance
    34  shall  terminate  upon the issuance of the final award of maintenance or
    35  the death of either party, whichever occurs first.

    36    e. (1) The court shall order the presumptive award of temporary  main-
    37  tenance  in  accordance  with  paragraphs c and d   of this subdivision,
    38  unless the court finds that the presumptive award is unjust or  inappro-
    39  priate  and  adjusts  the  presumptive  award  of  temporary maintenance
    40  accordingly based upon consideration of the following factors:
    41    (a) the standard of living  of  the  parties  established  during  the
    42  marriage;
    43    (b) the age and health of the parties;
    44    (c) the earning capacity of the parties;
    45    (d) the need of one party to incur education or training expenses;
    46    (e) the wasteful dissipation of marital property;
    47    (f) the transfer or encumbrance made in contemplation of a matrimonial

    48  action without fair consideration;
    49    (g)  the  existence and duration of a pre-marital joint household or a
    50  pre-divorce separate household;
    51    (h) acts by one party against another that have inhibited or  continue
    52  to  inhibit  a  party's earning capacity or ability to obtain meaningful
    53  employment. Such acts include but are not limited to  acts  of  domestic
    54  violence  as provided in section four hundred fifty-nine-a of the social
    55  services law;
    56    (i) the availability and cost of medical insurance for the parties;
        A. 10984--B                         4
 
     1    (j) the care of the children or stepchildren, disabled adult  children
     2  or  stepchildren,  elderly  parents  or  in-laws  that  has inhibited or

     3  continues to inhibit a party's earning capacity  or  ability  to  obtain
     4  meaningful employment;
     5    (k)  the inability of one party to obtain meaningful employment due to
     6  age or absence from the workforce;
     7    (l) the need to pay for exceptional additional expenses for the  child
     8  or  children,  including,  but  not  limited to, schooling, day care and
     9  medical treatment;
    10    (m) the tax consequences to each party;
    11    (n) marital property subject to distribution pursuant  to  subdivision
    12  five of this part;
    13    (o)  the  reduced or lost earning capacity of the party seeking tempo-
    14  rary maintenance as a result of having foregone  or  delayed  education,

    15  training, employment or career opportunities during the marriage;
    16    (p)  the  contributions  and  services  of the party seeking temporary
    17  maintenance as a spouse, parent, wage earner and homemaker  and  to  the
    18  career or career potential of the other party; and
    19    (q)  any  other factor which the court shall expressly find to be just
    20  and proper.
    21    (2) Where the court finds that  the  presumptive  award  of  temporary
    22  maintenance  is  unjust  or  inappropriate  and  the  court  adjusts the
    23  presumptive award of temporary maintenance pursuant to  this  paragraph,
    24  the  court  shall set forth, in a written order, the amount of the unad-
    25  justed presumptive  award  of  temporary  maintenance,  the  factors  it

    26  considered,  and  the  reasons  that  the court adjusted the presumptive
    27  award of temporary maintenance. Such written order shall not  be  waived
    28  by either party or counsel.
    29    (3)  Where  either  or both parties are unrepresented, the court shall
    30  not enter a temporary maintenance order unless the  unrepresented  party
    31  or  parties  have  been  informed  of the presumptive award of temporary
    32  maintenance.
    33    f. A validly executed agreement  or  stipulation  voluntarily  entered
    34  into between the parties in an action commenced after the effective date
    35  of this subdivision presented to the court for incorporation in an order
    36  shall  include a provision stating that the parties have been advised of

    37  the provisions of this  subdivision,  and  that  the  presumptive  award
    38  provided  for therein results in the correct amount of temporary mainte-
    39  nance. In the event that such agreement or stipulation deviates from the
    40  presumptive award of temporary maintenance, the agreement or stipulation
    41  must specify the amount that such presumptive award of temporary mainte-
    42  nance would have been and the reason or reasons that such  agreement  or
    43  stipulation  does not provide for payment of that amount. Such provision
    44  may not be waived by either party or counsel.  Nothing contained in this
    45  subdivision shall be construed to alter the rights  of  the  parties  to
    46  voluntarily enter into validly executed agreements or stipulations which

    47  deviate  from  the  presumptive  award of temporary maintenance provided
    48  such agreements or stipulations  comply  with  the  provisions  of  this
    49  subdivision. The court shall, however, retain discretion with respect to
    50  temporary, and post-divorce maintenance awards pursuant to this section.
    51  Any  court  order  incorporating  a validly executed agreement or stipu-
    52  lation which deviates from the presumptive award  of  temporary  mainte-
    53  nance shall set forth the court's reasons for such deviation.
    54    g.  When a party has defaulted and/or the court is otherwise presented
    55  with insufficient evidence to determine gross income,  the  court  shall
    56  order  the temporary maintenance award based upon the needs of the payee

        A. 10984--B                         5
 
     1  or the standard of living of the parties prior to  commencement  of  the
     2  divorce  action,  whichever  is greater. Such order may be retroactively
     3  modified upward without a showing of  change  in  circumstances  upon  a
     4  showing of newly discovered or obtained evidence.
     5    h. In any action or proceeding for modification of an order of mainte-
     6  nance  or  alimony existing prior to the effective date of this subdivi-
     7  sion, brought pursuant to this article, the temporary maintenance guide-
     8  lines set forth in this subdivision shall not  constitute  a  change  of
     9  circumstances warranting modification of such support order.
    10    i.  In any decision made pursuant to this subdivision the court shall,

    11  where appropriate, consider the effect of a barrier  to  remarriage,  as
    12  defined  in  subdivision  six of section two hundred fifty-three of this
    13  article, on the factors enumerated in this subdivision.
    14    § 2. Subdivision 6 of part B of section 236 of the domestic  relations
    15  law,  as  amended by chapter 884 of the laws of 1986, subparagraph 10 as
    16  amended, subparagraph 11 as added and subparagraph 12 of paragraph a  as
    17  renumbered  by  chapter 229 of the laws of 2009, paragraph d as added by
    18  chapter 415 of the laws of 1992, is amended to read as follows:
    19    6. [Maintenance] Post-divorce maintenance awards.  a. Except where the
    20  parties have entered into an agreement pursuant to subdivision three  of
    21  this part providing for maintenance, in any matrimonial action the court

    22  may  order  [temporary  maintenance  or]  maintenance  in such amount as
    23  justice requires, having regard  for  the  standard  of  living  of  the
    24  parties  established  during  the  marriage,  whether the party in whose
    25  favor maintenance is granted lacks sufficient  property  and  income  to
    26  provide  for his or her reasonable needs and whether the other party has
    27  sufficient property or income to provide for the reasonable needs of the
    28  other and the circumstances of the case and of the  respective  parties.
    29  Such  order  shall be effective as of the date of the application there-
    30  for, and any retroactive amount of maintenance due shall be paid in  one
    31  sum or periodic sums, as the court shall direct, taking into account any
    32  amount  of temporary maintenance which has been paid. In determining the
    33  amount and duration of maintenance the court shall consider:

    34    (1) the income and property of the respective parties including  mari-
    35  tal property distributed pursuant to subdivision five of this part;
    36    (2) the [duration] length of the marriage [and];
    37    (3) the age and health of both parties;
    38    [(3)] (4) the present and future earning capacity of both parties;
    39    [(4)]  (5)  the  need  of  one  party  to  incur education or training
    40  expenses;
    41    (6) the existence and duration of a pre-marital joint household  or  a
    42  pre-divorce separate household;
    43    (7)  acts by one party against another that have inhibited or continue
    44  to inhibit a party's earning capacity or ability  to  obtain  meaningful

    45  employment.  Such  acts  include but are not limited to acts of domestic
    46  violence as provided in section four hundred fifty-nine-a of the  social
    47  services law;
    48    (8)  the  ability of the party seeking maintenance to become self-sup-
    49  porting and, if applicable, the period of time  and  training  necessary
    50  therefor;
    51    [(5)] (9) reduced or lost lifetime earning capacity of the party seek-
    52  ing  maintenance  as  a  result of having foregone or delayed education,
    53  training, employment, or career opportunities during the marriage;
    54    [(6)] (10) the presence of children of the marriage in the  respective
    55  homes of the parties;
        A. 10984--B                         6
 

     1    [(7)]  (11)  the  care of the children or stepchildren, disabled adult
     2  children or stepchildren, elderly parents or in-laws that has  inhibited
     3  or continues to inhibit a party's earning capacity;
     4    (12) the inability of one party to obtain meaningful employment due to
     5  age or absence from the workforce;
     6    (13)  the  need  to  pay  for  exceptional additional expenses for the
     7  child/children, including but not limited to, schooling,  day  care  and
     8  medical treatment;
     9    (14) the tax consequences to each party;
    10    [(8)] (15) the equitable distribution of marital property;
    11    (16)  contributions and services of the party seeking maintenance as a
    12  spouse, parent, wage earner and homemaker, and to the career  or  career

    13  potential of the other party;
    14    [(9)]  (17)  the  wasteful  dissipation  of marital property by either
    15  spouse;
    16    [(10) any] (18) the transfer or encumbrance made in contemplation of a
    17  matrimonial action without fair consideration;
    18    [(11)] (19) the loss of health insurance benefits upon dissolution  of
    19  the marriage, and the availability and cost of medical insurance for the
    20  parties; and
    21    [(12)]  (20)  any other factor which the court shall expressly find to
    22  be just and proper.
    23    b. In any decision made pursuant to this subdivision, the court  shall
    24  set forth the factors it considered and the reasons for its decision and
    25  such may not be waived by either party or counsel.

    26    c.  The court may award permanent maintenance, but an award of mainte-
    27  nance shall terminate upon the death of either party or upon the recipi-
    28  ent's valid or invalid marriage, or upon modification pursuant to  para-
    29  graph [(b)] b of subdivision nine of [section two hundred thirty-six of]
    30  this part or section two hundred forty-eight of this chapter.
    31    d.  In any decision made pursuant to this subdivision the court shall,
    32  where appropriate, consider the effect of a barrier  to  remarriage,  as
    33  defined  in  subdivision  six of section two hundred fifty-three of this
    34  article, on the factors enumerated in paragraph a of this subdivision.
    35    § 3. Part B of section 236 of the domestic relations law is amended by
    36  adding a new subdivision 6-a to read as follows:
    37    6-a. Law revision commission study. a. The  legislature  hereby  finds

    38  and  declares  it  to be the policy of the state that it is necessary to
    39  achieve equitable outcomes when families divorce and it is important  to
    40  ensure  that the economic consequences of a divorce are fairly shared by
    41  divorcing couples. Serious concerns have been raised that the  implemen-
    42  tation of New York state's maintenance laws have not resulted in equita-
    43  ble  results.  Maintenance is often not granted and where it is granted,
    44  the results are inconsistent  and  unpredictable.  This  raises  serious
    45  concerns  about  the  ability of our current maintenance laws to achieve
    46  equitable and fair outcomes.
    47    The legislature further finds a comprehensive review of the provisions

    48  of our state's maintenance laws should be undertaken. It has been thirty
    49  years since the legislature significantly reformed our  state's  divorce
    50  laws  by  enacting equitable distribution of marital property and intro-
    51  duced the concept of maintenance to replace alimony. Concerns  that  the
    52  implementation  of  our  maintenance laws have not resulted in equitable
    53  results compel the need for a review of these laws.
    54    b. The law revision commission is hereby directed to:
    55    (1) review and assess the economic  consequences  of  divorce  on  the
    56  parties;
        A. 10984--B                         7
 
     1    (2)  review  the  maintenance  laws of the state, including the way in

     2  which they are administered to determine the impact  of  these  laws  on
     3  post  marital  economic  disparities, and the effectiveness of such laws
     4  and their administration in  achieving  the  state's  policy  goals  and
     5  objectives  of  ensuring that the economic consequences of a divorce are
     6  fairly and equitably shared by the divorcing couple; and
     7    (3) make recommendations to the legislature, including  such  proposed
     8  revisions of such laws as it determines necessary to achieve these goals
     9  and objectives.
    10    c.  The law revision commission shall make a preliminary report to the
    11  legislature and the governor  of  its  findings,  conclusions,  and  any
    12  recommendations  not  later  than nine months from the effective date of

    13  this subdivision, and a final report of its  findings,  conclusions  and
    14  recommendations not later than December thirty-first, two thousand elev-
    15  en.
    16    §  4.  Paragraph  a  of  subdivision 1 of part B of section 236 of the
    17  domestic relations law, as amended by chapter 884 of the laws  of  1986,
    18  is amended to read as follows:
    19    a.  The term "maintenance" shall mean payments provided for in a valid
    20  agreement between the parties or awarded by the court in accordance with
    21  the provisions of [subdivision] subdivisions  five-a  and  six  of  this
    22  part,  to be paid at fixed intervals for a definite or indefinite period
    23  of time, but an award of maintenance shall terminate upon the  death  of
    24  either  party or upon the recipient's valid or invalid marriage, or upon

    25  modification pursuant to paragraph (b) of subdivision  nine  of  section
    26  two  hundred  thirty-six of this part or section two hundred forty-eight
    27  of this chapter.
    28    § 5. The chief administrator of the courts shall promulgate all  rules
    29  necessary to implement the provisions of this act.
    30    §  6.  This act shall take effect immediately; provided, however, that
    31  sections one, two and four of this act shall take effect on the sixtieth
    32  day after this act shall have become a law and shall apply to matrimoni-
    33  al actions commenced on or after the effective date of such sections.