STATE OF NEW YORK
________________________________________________________________________
2345
2015-2016 Regular Sessions
IN SENATE
January 22, 2015
___________
Introduced by Sen. HASSELL-THOMPSON -- read twice and ordered printed,
and when printed to be committed to the Committee on Judiciary
AN ACT to amend the domestic relations law and the family court act, in
relation to modifications of temporary maintenance awards and mainte-
nance obligations; and repealing section 248 of the domestic relations
law, relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 5-a of part B of section 236 of the domestic
2 relations law, as added by chapter 371 of the laws of 2010, is amended
3 to read as follows:
4 5-a. Temporary maintenance awards. a. Except where the parties have
5 entered into an agreement pursuant to subdivision three of this part
6 providing for maintenance, in any matrimonial action the court shall
7 make its award for temporary maintenance pursuant to the provisions of
8 this subdivision.
9 b. For purposes of this subdivision, the following definitions shall
10 be used:
11 (1) "Payor" shall mean the spouse with the higher income.
12 (2) "Payee" shall mean the spouse with the lower income.
13 (3) "Length of marriage" shall mean the period from the date of
14 marriage until the date of commencement of action.
15 (4) "Income" shall mean[:
16 (a)] income as defined in the child support standards act and codified
17 in section two hundred forty of this article and section four hundred
18 thirteen of the family court act[; and
19 (b) income from income producing property to be distributed pursuant
20 to subdivision five of this part].
21 (5) "Income cap" shall mean up to and including [five] three hundred
22 thousand dollars of the payor's annual income; provided, however, begin-
23 ning January thirty-first, two thousand [twelve] fifteen and every two
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07948-01-5
S. 2345 2
1 years thereafter, the [payor's annual] income cap amount shall increase
2 by the product of the average annual percentage changes in the consumer
3 price index for all urban consumers (CPI-U) as published by the United
4 States department of labor bureau of labor statistics for the two year
5 period rounded to the nearest one thousand dollars. The office of court
6 administration shall determine and publish the income cap.
7 (6) "Guideline amount of temporary maintenance" shall mean the [sum]
8 dollar amount derived by the application of paragraph c or d of this
9 subdivision.
10 [(7) "Guideline duration" shall mean the durational period determined
11 by the application of paragraph d of this subdivision.
12 (8) "Presumptive award" shall mean the guideline amount of the tempo-
13 rary maintenance award for the guideline duration prior to the court's
14 application of any adjustment factors as provided in subparagraph one of
15 paragraph e of this subdivision.
16 (9)] (7) "Self-support reserve" shall mean the self-support reserve as
17 defined in the child support standards act and codified in section two
18 hundred forty of this article and section four hundred thirteen of the
19 family court act.
20 c. [The court shall determine the guideline amount of temporary main-
21 tenance in accordance with the provisions of this paragraph after deter-
22 mining the income of the parties:
23 (1) Where the payor's income is up to and including the income cap:
24 (a) the court shall subtract twenty percent of the income of the payee
25 from thirty percent of the income up to the income cap of the payor.
26 (b) the court shall then multiply the sum of the payor's income up to
27 and including the income cap and all of the payee's income by forty
28 percent.
29 (c) the court shall subtract the income of the payee from the amount
30 derived from clause (b) of this subparagraph.
31 (d) the guideline amount of temporary maintenance shall be the lower
32 of the amounts determined by clauses (a) and (c) of this subparagraph;
33 if the amount determined by clause (c) of this subparagraph is less than
34 or equal to zero, the guideline amount shall be zero dollars.
35 (2) Where the income of the payor exceeds the income cap:
36 (a) the court shall determine the guideline amount of temporary main-
37 tenance for that portion of the payor's income that is up to and includ-
38 ing the income cap according to subparagraph one of this paragraph, and,
39 for the payor's income in excess of the income cap, the court shall
40 determine any additional guideline amount of temporary maintenance
41 through consideration of the following factors:
42 (i) the length of the marriage;
43 (ii) the substantial differences in the incomes of the parties;
44 (iii) the standard of living of the parties established during the
45 marriage;
46 (iv) the age and health of the parties;
47 (v) the present and future earning capacity of the parties;
48 (vi) the need of one party to incur education or training expenses;
49 (vii) the wasteful dissipation of marital property;
50 (viii) the transfer or encumbrance made in contemplation of a matrimo-
51 nial action without fair consideration;
52 (ix) the existence and duration of a pre-marital joint household or a
53 pre-divorce separate household;
54 (x) acts by one party against another that have inhibited or continue
55 to inhibit a party's earning capacity or ability to obtain meaningful
56 employment. Such acts include but are not limited to acts of domestic
S. 2345 3
1 violence as provided in section four hundred fifty-nine-a of the social
2 services law;
3 (xi) the availability and cost of medical insurance for the parties;
4 (xii) the care of the children or stepchildren, disabled adult chil-
5 dren or stepchildren, elderly parents or in-laws that has inhibited or
6 continues to inhibit a party's earning capacity or ability to obtain
7 meaningful employment;
8 (xiii) the inability of one party to obtain meaningful employment due
9 to age or absence from the workforce;
10 (xiv) the need to pay for exceptional additional expenses for the
11 child or children, including, but not limited to, schooling, day care
12 and medical treatment;
13 (xv) the tax consequences to each party;
14 (xvi) marital property subject to distribution pursuant to subdivision
15 five of this part;
16 (xvii) the reduced or lost earning capacity of the party seeking
17 temporary maintenance as a result of having foregone or delayed educa-
18 tion, training, employment or career opportunities during the marriage;
19 (xviii) the contributions and services of the party seeking temporary
20 maintenance as a spouse, parent, wage earner and homemaker and to the
21 career or career potential of the other party; and
22 (xix) any other factor which the court shall expressly find to be just
23 and proper.
24 (b)] Where the payor's income is lower than or equal to the income
25 cap, the court shall determine the guideline amount of temporary mainte-
26 nance as follows:
27 (1) The court shall subtract twenty percent of the payee's income from
28 thirty percent of the payor's income.
29 (2) The court shall then multiply the sum of the payor's income and
30 the payee's income by forty percent.
31 (3) The court shall subtract the payee's income from the amount
32 derived from subparagraph two of this paragraph.
33 (4) The court shall determine the lower of amounts derived by subpara-
34 graphs one and three of this paragraph.
35 (5) The guideline amount of temporary maintenance shall be the amount
36 determined by subparagraph four of this paragraph except that, if the
37 amount determined by subparagraph four of this paragraph is less than or
38 equal to zero, the guideline amount of temporary maintenance shall be
39 zero dollars.
40 d. Where the payor's income exceeds the income cap, the court shall
41 determine the guideline amount of temporary maintenance as follows:
42 (1) The court shall perform the calculations set forth in subpara-
43 graphs one through four of paragraph c of this subdivision for the total
44 incomes of payor and payee.
45 (2) The court shall perform the calculations set forth in subpara-
46 graphs one through four of paragraph c of this subdivision for the
47 income of payor up to and including the income cap and for the income of
48 payee.
49 (3) The guideline amount of temporary maintenance shall be either:
50 (a) the calculation derived from subparagraph one of this paragraph;
51 or
52 (b) the amount derived from subparagraph two of this paragraph plus an
53 amount that the court shall determine by consideration of the factors
54 set forth in subparagraph one of paragraph h of this subdivision.
55 (4) In any decision made pursuant to clause (b) of subparagraph three
56 of this [subparagraph] paragraph, the court shall set forth the factors
S. 2345 4
1 it considered and the reasons for its decision in writing. Such written
2 [order] decision may not be waived by either party or counsel.
3 [(3)] e. Notwithstanding the provisions of this [paragraph] subdivi-
4 sion, where the guideline amount of temporary maintenance would reduce
5 the payor's income below the self-support reserve for a single person,
6 [the presumptive amount of] the guideline amount of temporary mainte-
7 nance shall be the difference between the payor's income and the self-
8 support reserve. If the payor's income is below the self-support
9 reserve, there is a rebuttable presumption that no temporary maintenance
10 is awarded.
11 [d.] f. The court shall determine the [guideline] duration of tempo-
12 rary maintenance by considering the length of the marriage.
13 g. Temporary maintenance shall terminate upon the issuance of the
14 [final award] determination of post-divorce maintenance or the death of
15 either party, whichever occurs first.
16 [e.] h. (1) The court shall order the [presumptive award] guideline
17 amount of temporary maintenance in accordance with paragraphs c and d of
18 this subdivision, unless the court finds that the [presumptive award]
19 guideline amount of temporary maintenance is unjust or inappropriate and
20 adjusts the [presumptive award] guideline amount of temporary mainte-
21 nance accordingly based upon consideration of the following factors:
22 (a) [the standard of living of the parties established during the
23 marriage;
24 (b)] the age and health of the parties;
25 [(c)] (b) the present or future earning capacity of the parties,
26 including the history of limited participation in the workforce;
27 [(d)] (c) the need of one party to incur education or training
28 expenses;
29 [(e)] (d) the wasteful dissipation of marital property[;
30 (f) the transfer], including transfers or [encumbrance] encumbrances
31 made in contemplation of a matrimonial action without fair consider-
32 ation;
33 [(g)] (e) the existence and duration of a pre-marital joint household
34 or a pre-divorce separate household;
35 [(h)] (f) acts by one party against another that have inhibited or
36 continue to inhibit a party's earning capacity or ability to obtain
37 meaningful employment. Such acts include but are not limited to acts of
38 domestic violence as provided in section four hundred fifty-nine-a of
39 the social services law;
40 [(i)] (g) the availability and cost of medical insurance for the
41 parties;
42 [(j)] (h) the care of [the] children or stepchildren, disabled adult
43 children or stepchildren, elderly parents or in-laws provided during the
44 marriage that [has inhibited or continues to inhibit] inhibits a party's
45 earning capacity [or ability to obtain meaningful employment];
46 [(k) the inability of one party to obtain meaningful employment due to
47 age or absence from the workforce;
48 (l)] (i) the need to pay for exceptional additional expenses for the
49 child or children not already considered in determining child support
50 pursuant to the child support standards act, including, but not limited
51 to, schooling, day care and medical treatment;
52 [(m)] (j) the tax consequences to each party;
53 (k) the standard of living of the parties established during the
54 marriage;
55 [(n) marital property subject to distribution pursuant to subdivision
56 five of this part;
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1 (o)] (l) the reduced or lost earning capacity of the [party seeking
2 temporary maintenance] payee as a result of having foregone or delayed
3 education, training, employment or career opportunities during the
4 marriage;
5 [(p) the contributions and services of the party seeking temporary
6 maintenance as a spouse, parent, wage earner and homemaker and to the
7 career or career potential of the other party;] and
8 [(q)] (m) any other factor which the court shall expressly find to be
9 just and proper.
10 (2) Where the court finds that the [presumptive award] guideline
11 amount of temporary maintenance is unjust or inappropriate and the court
12 adjusts the [presumptive award] guideline amount of temporary mainte-
13 nance pursuant to this paragraph, the court shall set forth, in a writ-
14 ten [order] decision, the [amount of the unadjusted presumptive award]
15 guideline amount of temporary maintenance, the factors it considered,
16 and the reasons that the court adjusted the [presumptive award] guide-
17 line amount of temporary maintenance. Such written [order] decision
18 shall not be waived by either party or counsel.
19 (3) Where either or both parties are unrepresented, the court shall
20 not enter a temporary maintenance order unless the court informs the
21 unrepresented party or parties [have been informed] of the [presumptive
22 award] guideline amount of temporary maintenance.
23 [f. A validly executed agreement or stipulation voluntarily entered
24 into between the parties in an action commenced after the effective date
25 of this subdivision presented to the court for incorporation in an order
26 shall include a provision stating that the parties have been advised of
27 the provisions of this subdivision, and that the presumptive award
28 provided for therein results in the correct amount of temporary mainte-
29 nance. In the event that such agreement or stipulation deviates from the
30 presumptive award of temporary maintenance, the agreement or stipulation
31 must specify the amount that such presumptive award of temporary mainte-
32 nance would have been and the reason or reasons that such agreement or
33 stipulation does not provide for payment of that amount. Such provision
34 may not be waived by either party or counsel. Nothing contained in this
35 subdivision shall be construed to alter the rights of the parties to
36 voluntarily enter into validly executed agreements or stipulations which
37 deviate from the presumptive award of temporary maintenance provided
38 such agreements or stipulations comply with the provisions of this
39 subdivision. The court shall, however, retain discretion with respect to
40 temporary, and post-divorce maintenance awards pursuant to this section.
41 Any court order incorporating a validly executed agreement or stipu-
42 lation which deviates from the presumptive award of temporary mainte-
43 nance shall set forth the court's reasons for such deviation.
44 g.] i. When a party has defaulted and/or the court is otherwise
45 presented with insufficient evidence to determine [gross] income, the
46 court shall order the temporary maintenance award based upon the needs
47 of the payee or the standard of living of the parties prior to commence-
48 ment of the divorce action, whichever is greater. Such order may be
49 retroactively modified upward without a showing of change in circum-
50 stances upon a showing of newly discovered or obtained evidence.
51 [h.] j. In any action or proceeding for modification of an order of
52 maintenance or alimony existing prior to the effective date of this
53 subdivision, brought pursuant to this article, the temporary maintenance
54 guidelines set forth in this subdivision shall not constitute a change
55 of circumstances warranting modification of such support order.
S. 2345 6
1 [i. In any decision made pursuant to this subdivision the court shall,
2 where appropriate, consider the effect of a barrier to remarriage, as
3 defined in subdivision six of section two hundred fifty-three of this
4 article, on the factors enumerated in this subdivision.]
5 k. The court may allocate the responsibilities of the respective
6 spouses for the family's expenses during the pendency of the proceeding.
7 l. The temporary maintenance order shall not prejudice the rights of
8 either party regarding a post-divorce maintenance award.
9 § 2. Subdivision 6 of part B of section 236 of the domestic relations
10 law, as amended by chapter 371 of the laws of 2010, is amended to read
11 as follows:
12 6. Post-divorce maintenance awards. a. Except where the parties have
13 entered into an agreement pursuant to subdivision three of this part
14 providing for maintenance, in any matrimonial action the court [may
15 order maintenance in such amount as justice requires, having regard for
16 the standard of living of the parties established during the marriage,
17 whether the party in whose favor maintenance is granted lacks sufficient
18 property and income to provide for his or her reasonable needs and
19 whether the other party has sufficient property or income to provide for
20 the reasonable needs of the other and the circumstances of the case and
21 of the respective parties. Such order shall be effective as of the date
22 of the application therefor, and any retroactive amount of maintenance
23 due shall be paid in one sum or periodic sums, as the court shall
24 direct, taking into account any amount of temporary maintenance which
25 has been paid. In determining the amount and duration of maintenance the
26 court shall consider:
27 (1) the income and property of the respective parties including mari-
28 tal property distributed pursuant to subdivision five of this part;
29 (2) the length of the marriage;
30 (3) the age and health of both parties;
31 (4) the present and future earning capacity of both parties;
32 (5) the need of one party to incur education or training expenses;
33 (6) the existence and duration of a pre-marital joint household or a
34 pre-divorce separate household;
35 (7) acts by one party against another that have inhibited or continue
36 to inhibit a party's earning capacity or ability to obtain meaningful
37 employment. Such acts include but are not limited to acts of domestic
38 violence as provided in section four hundred fifty-nine-a of the social
39 services law;
40 (8) the ability of the party seeking maintenance to become self-sup-
41 porting and, if applicable, the period of time and training necessary
42 therefor;
43 (9) reduced or lost lifetime earning capacity of the party seeking
44 maintenance as a result of having foregone or delayed education, train-
45 ing, employment, or career opportunities during the marriage;
46 (10) the presence of children of the marriage in the respective homes
47 of the parties;
48 (11) the care of the children or stepchildren, disabled adult children
49 or stepchildren, elderly parents or in-laws that has inhibited or
50 continues to inhibit a party's earning capacity;
51 (12) the inability of one party to obtain meaningful employment due to
52 age or absence from the workforce;
53 (13) the need to pay for exceptional additional expenses for the
54 child/children, including but not limited to, schooling, day care and
55 medical treatment;
56 (14) the tax consequences to each party;
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1 (15) the equitable distribution of marital property;
2 (16) contributions and services of the party seeking maintenance as a
3 spouse, parent, wage earner and homemaker, and to the career or career
4 potential of the other party;
5 (17) the wasteful dissipation of marital property by either spouse;
6 (18) the transfer or encumbrance made in contemplation of a matrimoni-
7 al action without fair consideration;
8 (19) the loss of health insurance benefits upon dissolution of the
9 marriage, and the availability and cost of medical insurance for the
10 parties; and
11 (20) any other factor which the court shall expressly find to be just
12 and proper] shall make its award for post-divorce maintenance pursuant
13 to the provisions of this subdivision.
14 b. [In any decision made pursuant to this subdivision, the court shall
15 set forth the factors it considered and the reasons for its decision and
16 such may not be waived by either party or counsel.
17 c. The court may award permanent maintenance, but an award of mainte-
18 nance shall terminate upon the death of either party or upon the recipi-
19 ent's valid or invalid marriage, or upon modification pursuant to para-
20 graph b of subdivision nine of this part or section two hundred
21 forty-eight of this chapter.
22 d. In any decision made pursuant to this subdivision the court shall,
23 where appropriate, consider the effect of a barrier to remarriage, as
24 defined in subdivision six of section two hundred fifty-three of this
25 article, on the factors enumerated in paragraph a of this subdivision.]
26 For purposes of this subdivision, the following definitions shall be
27 used:
28 (1) "Payor" shall mean the spouse with the higher income.
29 (2) "Payee" shall mean the spouse with the lower income.
30 (3) "Income" shall mean:
31 (i) income as defined in the child support standards act and codified
32 in section two hundred forty of this article and section four hundred
33 thirteen of the family court act, except that temporary maintenance paid
34 pursuant to subdivision five-a of this part and spousal support paid
35 pursuant to section four hundred twelve of the family court act, shall
36 not be deducted from payor's income; and
37 (ii) income from income-producing property distributed or to be
38 distributed pursuant to subdivision five of this part.
39 (4) "Income cap" shall mean up to and including three hundred thousand
40 dollars of the payor's annual income; provided, however, beginning Janu-
41 ary thirty-first, two thousand fifteen and every two years thereafter,
42 the income cap amount shall increase by the product of the average annu-
43 al percentage changes in the consumer price index for all urban consum-
44 ers (CPI-U) as published by the United States department of labor bureau
45 of labor statistics for the two year period rounded to the nearest one
46 thousand dollars. The office of court administration shall determine and
47 publish the income cap.
48 (5) "Guideline amount of post-divorce maintenance" shall mean the
49 dollar amount derived by the application of paragraph c or d of this
50 subdivision.
51 (6) "Guideline duration of post-divorce maintenance" shall mean the
52 durational period determined by the application of paragraph e of this
53 subdivision.
54 (7) "Post-divorce maintenance guideline obligation" shall mean the
55 guideline amount of post-divorce maintenance and the guideline duration
56 of post-divorce maintenance.
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1 (8) Length of marriage shall mean the period from the date of marriage
2 until the date of commencement of action.
3 (9) "Self-support reserve" shall mean the self-support reserve as
4 defined in the child support standards act and codified in section two
5 hundred forty of this article and section four hundred thirteen of the
6 family court act.
7 c. Where the payor's income is lower than or equal to the income cap,
8 the court shall determine the guideline amount of post-divorce mainte-
9 nance as follows:
10 (1) The court shall subtract twenty percent of the payee's income from
11 thirty percent of the payor's income.
12 (2) The court shall then multiply the sum of the payor's income and
13 the payee's income by forty percent.
14 (3) The court shall subtract the payee's income from the amount
15 derived from subparagraph two of this paragraph.
16 (4) The court shall determine the lower of amounts derived by subpara-
17 graphs one and three of this paragraph.
18 (5) The guideline amount of post-divorce maintenance shall be the
19 amount determined by subparagraph four of this paragraph except that, if
20 the amount determined by subparagraph four of this paragraph is less
21 than or equal to zero, the guideline amount of post-divorce maintenance
22 shall be zero dollars.
23 (6) Notwithstanding the provisions of this subdivision, where the
24 guideline amount of post-divorce maintenance would reduce the payor's
25 income below the self-support reserve for a single person, the guideline
26 amount of post-divorce maintenance shall be the difference between the
27 payor's income and the self-support reserve. If the payor's income is
28 below the self-support reserve, there is a rebuttable presumption that
29 no post-divorce maintenance is awarded.
30 d. Where the payor's income exceeds the income cap, the court shall
31 determine the guideline amount of post-divorce maintenance as follows:
32 (1) The court shall perform the calculations set forth in subpara-
33 graphs one through four of paragraph c of this subdivision for the total
34 incomes of payor and payee.
35 (2) The court shall perform the calculations set forth in subpara-
36 graphs one through four of paragraph c of this subdivision for the
37 income of payor up to and including the income cap and for the income of
38 payee.
39 (3) The guideline amount of post-divorce maintenance shall be either:
40 (a) the calculation derived from subparagraph one of this paragraph;
41 or
42 (b) the amount derived from subparagraph two of this paragraph plus an
43 amount that the court shall determine by consideration of the factors
44 set forth in subparagraph one of paragraph f of this subdivision.
45 (4) In any decision made pursuant to clause (b) of subparagraph three
46 of this paragraph, the court shall set forth the factors it considered
47 and the reasons for its decision in writing. Such written decision may
48 not be waived by either party or counsel.
49 e. The guideline duration of post-divorce maintenance shall be deter-
50 mined as follows:
51 (1) The court shall determine the guideline duration of post-divorce
52 maintenance in accordance with the following schedule:
53 Length of the Marriage% of the Length of the Marriage
54 for which Maintenance
55 Will Be Payable
56 0 up to and including 5 years30%
S. 2345 9
1 more than 5, up to and including 7.5 years40%
2 more than 7.5, up to and including 10 years50%
3 more than 10, up to and including 12.5 years60%
4 more than 12.5, up to and including 15 years70%
5 more than 15, up to and including 17.5 years80%
6 more than 17.5, up to and including 20 years90%
7 more than 20, up to and including 25 years100%
8 more than 25 yearsnondurational
9 (2) Notwithstanding the provisions of subparagraph (1) of this para-
10 graph, post-divorce maintenance shall terminate upon the death of the
11 payor or payee.
12 f. (1) The court shall order the post-divorce maintenance guideline
13 obligation in accordance with paragraphs c, d and e of this subdivision,
14 unless the court finds that the post-divorce maintenance guideline obli-
15 gation is unjust or inappropriate and adjusts the post-divorce mainte-
16 nance guideline obligation accordingly based upon consideration of the
17 following factors:
18 (a) The age and health of the parties;
19 (b) The present or future earning capacity of the parties, including
20 the history of limited participation in the workforce;
21 (c) The need of one party to incur education or training expenses;
22 (d) The wasteful dissipation of marital property, including transfers
23 or encumbrances made in contemplation of a matrimonial action without
24 fair consideration;
25 (e) The existence and duration of a pre-marital joint household or a
26 pre-divorce separate household;
27 (f) Acts by one party against another that have inhibited or continue
28 to inhibit a party's earning capacity or ability to obtain meaningful
29 employment. Such acts include but are not limited to acts of domestic
30 violence as provided in section four hundred fifty-nine-a of the social
31 services law;
32 (g) The availability and cost of medical insurance for the parties;
33 (h) The care of children or stepchildren, disabled adult children or
34 stepchildren, elderly parents or in-laws provided during the marriage
35 that inhibits a party's earning capacity;
36 (i) The need to pay for exceptional additional expenses for the child
37 or children not already considered in determining child support pursuant
38 to the child support standards act, including, but not limited to,
39 schooling, day care and medical treatment;
40 (j) The tax consequences to each party;
41 (k) The standard of living of the parties established during the
42 marriage;
43 (l) The reduced or lost earning capacity of the payee as a result of
44 having foregone or delayed education, training, employment or career
45 opportunities during the marriage;
46 (m) The equitable distribution of marital property;
47 (n) The contributions and services of the payee as a spouse, parent,
48 wage earner and homemaker and to the career or career potential of the
49 other party; and
50 (o) Any other factor which the court shall expressly find to be just
51 and proper.
52 (2) Where the court finds that the post-divorce maintenance guideline
53 obligation is unjust or inappropriate and the court adjusts the post-di-
54 vorce maintenance guideline obligation pursuant to this paragraph, the
55 court shall set forth, in a written decision, the unadjusted post-di-
56 vorce maintenance guideline obligation, the factors it considered, and
S. 2345 10
1 the reasons that the court adjusted the post-divorce maintenance obli-
2 gation. Such written decision shall not be waived by either party or
3 counsel.
4 g. Where either or both parties are unrepresented, the court shall not
5 enter a maintenance order or judgment unless the court informs the
6 unrepresented party or parties of the post-divorce maintenance guideline
7 obligation.
8 h. A validly executed agreement or stipulation voluntarily entered
9 into between the parties in an action commenced after the effective date
10 of the chapter of the laws of two thousand fifteen which amended this
11 subdivision presented to the court for incorporation in an order or
12 judgment shall include a provision stating that the parties have been
13 advised of the provisions of this subdivision, and that the post-divorce
14 maintenance guideline obligation provided for therein would presumptive-
15 ly result in the correct amount of post-divorce maintenance. In the
16 event that such agreement or stipulation deviates from the post-divorce
17 maintenance guideline obligation, the agreement or stipulation must
18 specify the amount that such post-divorce maintenance guideline obli-
19 gation would have been and the reason or reasons that such agreement or
20 stipulation does not provide for payment of that amount. Such provision
21 may not be waived by either party or counsel. Nothing contained in this
22 subdivision shall be construed to alter the rights of the parties to
23 voluntarily enter into validly executed agreements or stipulations which
24 deviate from the post-divorce maintenance guideline obligation provided
25 such agreements or stipulations comply with the provisions of this
26 subdivision. Any court order incorporating a validly executed agreement
27 or stipulation which deviates from the post-divorce maintenance guide-
28 line obligation shall set forth the court's reasons for such deviation.
29 i. When a party has defaulted and/or the court is otherwise presented
30 with insufficient evidence to determine income, the court shall order
31 the post-divorce maintenance based upon the needs of the payee or the
32 standard of living of the parties prior to commencement of the divorce
33 action, whichever is greater. Such order may be retroactively modified
34 upward without a showing of change in circumstances upon a showing of
35 newly discovered or obtained evidence.
36 j. Post-divorce maintenance may be modified pursuant to paragraph b of
37 subdivision nine of this part.
38 k. In any action or proceeding for modification of an order of mainte-
39 nance or alimony existing prior to the effective date of a chapter of
40 the laws of two thousand fifteen which amended this subdivision, brought
41 pursuant to this article, the guidelines for post-divorce maintenance
42 set forth in this subdivision shall not constitute a change of circum-
43 stances warranting modification of such support order.
44 l. In any action or proceeding for modification of an order of mainte-
45 nance or alimony existing prior to the effective date of a chapter of
46 the laws of two thousand fifteen which amended this subdivision, brought
47 pursuant to this article, the guidelines for post-divorce maintenance
48 set forth in paragraphs c, d and e of this subdivision shall apply.
49 m. In any decision made pursuant to this subdivision the court shall,
50 where appropriate, consider the effect of a barrier to remarriage, as
51 defined in subdivision six of section two hundred fifty-three of this
52 article, on the factors enumerated in paragraph f of this subdivision.
53 § 3. Subparagraph 1 of paragraph b of subdivision 9 of part B of
54 section 236 of the domestic relations law, as amended by chapter 182 of
55 the laws of 2010, is amended to read as follows:
S. 2345 11
1 (1) Upon application by either party, the court may annul or modify
2 any prior order or judgment as to maintenance, upon a showing of the
3 [recipient's] payee's inability to be self-supporting [or a substantial
4 change in circumstance or], the termination of child support awarded
5 pursuant to section two hundred forty of this article, or a substantial
6 change in circumstances including financial hardship, remarriage of the
7 payee if the remarriage results in a substantial change in financial
8 circumstances, and actual retirement of the payor if the retirement
9 results in a substantial change in financial circumstances. Where, after
10 the effective date of this part, a separation agreement remains in force
11 no modification of a prior order or judgment incorporating the terms of
12 said agreement shall be made as to maintenance without a showing of
13 extreme hardship on either party, in which event the judgment or order
14 as modified shall supersede the terms of the prior agreement and judg-
15 ment for such period of time and under such circumstances as the court
16 determines. The court shall not reduce or annul any arrears of mainte-
17 nance which have been reduced to final judgment pursuant to section two
18 hundred forty-four of this article. No other arrears of maintenance
19 which have accrued prior to the making of such application shall be
20 subject to modification or annulment unless the defaulting party shows
21 good cause for failure to make application for relief from the judgment
22 or order directing such payment prior to the accrual of such arrears and
23 the facts and circumstances constituting good cause are set forth in a
24 written memorandum of decision. Such modification may increase mainte-
25 nance nunc pro tunc as of the date of application based on newly discov-
26 ered evidence. Any retroactive amount of maintenance due shall, except
27 as provided for herein, be paid in one sum or periodic sums, as the
28 court directs, taking into account any temporary or partial payments
29 which have been made. The provisions of this subdivision shall not apply
30 to a separation agreement made prior to the effective date of this part.
31 § 4. Section 412 of the family court act, as amended by chapter 281 of
32 the laws of 1980, is amended to read as follows:
33 § 412. Married person's duty to support spouse. a. A married person is
34 chargeable with the support of his or her spouse and, [if possessed of
35 sufficient means or able to earn such means, may be required to pay for
36 his or her support a fair and reasonable sum, as the court may deter-
37 mine, having due regard to the circumstances of the respective parties.]
38 except where the parties have entered into an agreement pursuant to
39 section four hundred twenty-five of this article providing for support,
40 the court shall make its award for spousal support pursuant to the
41 provisions of this part.
42 b. For purposes of this section, the following definitions shall be
43 used:
44 (1) "Payor" shall mean the spouse with the higher income.
45 (2) "Payee" shall mean the spouse with the lower income.
46 (3) "Income" shall mean income as defined in the child support stand-
47 ards act and codified in section two hundred forty of the domestic
48 relations law and section four hundred thirteen of this part.
49 (4) "Income cap" shall mean up to and including three hundred thousand
50 dollars of the payor's annual income; provided, however, beginning Janu-
51 ary thirty-first, two thousand sixteen and every two years thereafter,
52 the income cap amount shall increase by the product of the average annu-
53 al percentage changes in the consumer price index for all urban consum-
54 ers (CPI-U) as published by the United States department of labor bureau
55 of labor statistics for the two year period rounded to the nearest one
S. 2345 12
1 thousand dollars. The office of court administration shall determine and
2 publish the income cap.
3 (5) "Guideline amount of spousal support" shall mean the sum derived
4 by the application of subdivision c or d of this section.
5 (6) "Self-support reserve" shall mean the self-support reserve as
6 defined in the child support standards act and codified in section two
7 hundred forty of the domestic relations law and section four hundred
8 thirteen of this part.
9 c. Where the payor's income is lower than or equal to the income cap,
10 the court shall determine the guideline amount of spousal support as
11 follows:
12 (1) The court shall subtract twenty percent of the payee's income from
13 thirty percent of the payor's income.
14 (2) The court shall then multiply the sum of the payor's income and
15 the payee's income by forty percent.
16 (3) The court shall subtract the payee's income from the amount
17 derived from paragraph two of this subdivision.
18 (4) The court shall determine the lower of amounts derived by para-
19 graphs one and three of this subdivision.
20 (5) The guideline amount of spousal support shall be the amount deter-
21 mined by paragraph four of this subdivision except that, if the amount
22 determined by paragraph four of this subdivision is less than or equal
23 to zero, the guideline amount of spousal support shall be zero dollars.
24 d. Where the payor's income exceeds the income cap, the court shall
25 determine the guideline amount of spousal support as follows:
26 (1) The court shall perform the calculations set forth in paragraphs
27 one through four of subdivision c of this section for the total incomes
28 of payor and payee.
29 (2) The court shall perform the calculations set forth in paragraphs
30 one through four of subdivision c of this section for the income of
31 payor up to and including the income cap and for the income of payee.
32 (3) The guideline amount of spousal support shall be either:
33 (a) the calculation derived from paragraph one of this subdivision; or
34 (b) the amount derived from paragraph two of this subdivision plus an
35 amount that the court shall determine by consideration of the factors
36 set forth in paragraph one of subdivision f of this section.
37 (4) In any decision made pursuant to subparagraph (b) of paragraph
38 three of this subdivision, the court shall set forth the factors it
39 considered and the reasons for its decision in writing. Such written
40 decision may not be waived by either party or counsel.
41 e. Notwithstanding the provisions of this section, where the guideline
42 amount of spousal support would reduce the payor's income below the
43 self-support reserve for a single person, the guideline amount of spous-
44 al support shall be the difference between the payor's income and the
45 self-support reserve. If the payor's income is below the self-support
46 reserve, there is a rebuttable presumption that no spousal support is
47 awarded.
48 f. (1) The court shall order the guideline amount of spousal support
49 in accordance with subdivisions c and d of this section, unless the
50 court finds that the guideline amount of spousal support is unjust or
51 inappropriate and adjusts the guideline amount of spousal support
52 accordingly based upon consideration of the following factors:
53 (a) the age and health of the parties;
54 (b) the present or future earning capacity of the parties, including
55 the history of limited participation in the workforce;
56 (c) the need of one party to incur education or training expenses;
S. 2345 13
1 (d) the wasteful dissipation of marital property, including transfers
2 or encumbrances made in contemplation of a support proceeding without
3 fair consideration;
4 (e) the existence and duration of a pre-marital joint household or a
5 pre-support proceedings separate household;
6 (f) acts by one party against another that have inhibited or continue
7 to inhibit a party's earning capacity or ability to obtain meaningful
8 employment. Such acts include but are not limited to acts of domestic
9 violence as provided in section four hundred fifty-nine-a of the social
10 services law;
11 (g) the availability and cost of medical insurance for the parties;
12 (h) the care of children or stepchildren, disabled adult children or
13 stepchildren, elderly parents or in-laws provided during the marriage
14 that inhibits a party's earning capacity;
15 (i) the need to pay for exceptional additional expenses for the child
16 or children not already considered in determining child support pursuant
17 to the child support standards act, including, but not limited to,
18 schooling, day care and medical treatment;
19 (j) the tax consequences to each party;
20 (k) the standard of living of the parties established during the
21 marriage;
22 (l) the reduced or lost earning capacity of the payee as a result of
23 having foregone or delayed education, training, employment or career
24 opportunities during the marriage;
25 (m) the contributions and services of the payee as a spouse, parent,
26 wage earner and homemaker and to the career or career potential of the
27 other party; and
28 (n) any other factor which the court shall expressly find to be just
29 and proper.
30 (2) Where the court finds that the guideline amount of spousal support
31 is unjust or inappropriate and the court adjusts the guideline amount of
32 spousal support pursuant to this subdivision, the court shall set forth,
33 in a written decision, the guideline amount of spousal support, the
34 factors it considered, and the reasons that the court adjusted the
35 guideline amount of spousal support. Such written decision shall not be
36 waived by either party or counsel.
37 (3) Where either or both parties are unrepresented, the court shall
38 not enter a spousal support order unless the court informs the unrepre-
39 sented party or parties of the guideline amount of spousal support.
40 g. When a party has defaulted and/or the court is otherwise presented
41 with insufficient evidence to determine income, the court shall order
42 the spousal support award based upon the needs of the payee or the stan-
43 dard of living of the parties prior to commencement of the spousal
44 support proceeding, whichever is greater. Such order may be retroac-
45 tively modified upward without a showing of change in circumstances upon
46 a showing of newly discovered or obtained evidence.
47 h. In any action or proceeding for modification of an order of spousal
48 support existing prior to the effective date of the chapter of the laws
49 of two thousand fifteen which amended this section, brought pursuant to
50 this article, the spousal support guidelines set forth in this section
51 shall not constitute a change of circumstances warranting modification
52 of such spousal support order.
53 § 5. Paragraph a of subdivision 1 of part B of section 236 of the
54 domestic relations law, as amended by chapter 371 of the laws of 2010,
55 is amended to read as follows:
S. 2345 14
1 a. The term "maintenance" shall mean payments provided for in a valid
2 agreement between the parties or awarded by the court in accordance with
3 the provisions of subdivisions five-a and six of this part, to be paid
4 at fixed intervals for a definite or indefinite period of time, but an
5 award of maintenance shall terminate upon the death of either party [or
6 upon the recipient's valid or invalid marriage,] or upon modification
7 pursuant to paragraph [(b)] b of subdivision nine [of section two
8 hundred thirty-six] of this part [or section two hundred forty-eight of
9 this chapter].
10 § 6. Subparagraph 7 of paragraph d of subdivision 5 of part B of
11 section 236 of the domestic relations law, as amended by chapter 281 of
12 the laws of 1980 and as renumbered by chapter 229 of the laws of 2009,
13 is amended to read as follows:
14 (7) any equitable claim to, interest in, or direct or indirect
15 contribution made to the acquisition of such marital property by the
16 party not having title, including joint efforts or expenditures and
17 contributions and services as a spouse, parent, wage earner and homemak-
18 er, and to the career or career potential of the other party. The court
19 shall not consider as marital property subject to distribution the value
20 of a spouse's enhanced earning capacity arising from a license, degree,
21 celebrity goodwill, or career enhancement. However, in arriving at an
22 equitable division of marital property, the court shall consider the
23 direct or indirect contributions to the development during the marriage
24 of the enhanced earning capacity of the other spouse;
25 § 7. Section 248 of the domestic relations law is REPEALED.
26 § 8. This act shall take effect on the sixtieth day after it shall
27 have become a law.
