Enacts "The Divorce Reform Act of 2010"; provides that maintenance may be required to be paid either permanently or for a fixed period of time; provides that the failure to state in an agreement between the parties or in a court order that the remarriage of the recipient of maintenance shall cause the termination of such maintenance, shall not bar the termination thereof; makes the post-divorce standards of living of the parties and the loss of health insurance benefits factors in determining the disposition of property; establishes irreconcilable differences as a ground for divorce; provides for payment of attorneys' and expert fees in matrimonial actions, including to obtain maintenance or distribution of property after a foreign divorce.
STATE OF NEW YORK
________________________________________________________________________
5667--B
2009-2010 Regular Sessions
IN SENATE
May 27, 2009
___________
Introduced by Sen. OPPENHEIMER -- read twice and ordered printed, and
when printed to be committed to the Committee on Judiciary -- recom-
mitted to the Committee on Judiciary in accordance with Senate Rule 6,
sec. 8 -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee
AN ACT to amend the domestic relations law and the family court act, in
relation to enacting the "Divorce Reform Act of 2010"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "Divorce Reform Act of 2010".
3 § 2. Paragraph a of subdivision 1 of part B of section 236 of the
4 domestic relations law, as amended by chapter 884 of the laws of 1986,
5 is amended to read as follows:
6 a. The term "maintenance" shall mean payments provided for in a valid
7 agreement between the parties or awarded by the court in accordance with
8 the provisions of subdivision six of this part, to be paid at fixed
9 intervals [for a definite or indefinite] either permanently or for a
10 fixed period of time, but an award of maintenance shall terminate upon
11 the death of either party or upon the recipient's valid or invalid
12 marriage, or upon modification pursuant to paragraph [(b)] b of subdivi-
13 sion nine of [section two hundred thirty-six of] this part or section
14 two hundred forty-eight of this [chapter] article. Failure to state in
15 an agreement between the parties, or in a court order, that the recipi-
16 ent's re-marriage shall terminate an award of maintenance, shall not
17 prevent the termination of such maintenance.
18 § 3. Subparagraph 2 of paragraph d of subdivision 5 of part B of
19 section 236 of the domestic relations law, as added by chapter 281 of
20 the laws of 1980, is amended to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01545-15-0
S. 5667--B 2
1 (2) the duration of the marriage and the age and health of both
2 parties and the post-divorce standards of living of the parties;
3 § 4. The opening paragraph of paragraph a and paragraph c of subdivi-
4 sion 6 of part B of section 236 of the domestic relations law, as
5 amended by chapter 884 of the laws of 1986, are amended to read as
6 follows:
7 Except where the parties have entered into an agreement pursuant to
8 subdivision three of this part providing for maintenance, in any matri-
9 monial action the court may order temporary maintenance or maintenance
10 in such amount as justice requires, having regard for the standard of
11 living of the parties established during the marriage, whether the party
12 in whose favor maintenance is granted lacks sufficient property and
13 income to provide for his or her reasonable needs and whether the other
14 party has sufficient property or income to provide for the reasonable
15 needs of the other and the circumstances of the case [and of the respec-
16 tive parties. Such order]. In those situations where the party seeking
17 maintenance is unable to maintain the standard of living of the parties
18 established during the marriage due to the duration of the marriage,
19 age, health, or reduced or lost lifetime earning capacity, or loss of
20 health insurance benefits, or the needs of minor or dependent children,
21 the court shall order permanent maintenance, subject to modification,
22 pursuant to paragraph b of subdivision nine of this part, in an amount
23 sufficient to eliminate the disparity in the post-divorce standard of
24 living of the parties. Orders of maintenance shall be effective as of
25 the date of the application therefor, and any retroactive amount of
26 maintenance due shall be paid in one sum or periodic sums, as the court
27 shall direct, taking into account any amount of temporary maintenance
28 which has been paid. In determining the amount and duration of mainte-
29 nance the court shall consider:
30 c. [The court may award permanent maintenance, but an award of] Where
31 the court orders permanent maintenance or maintenance for a fixed peri-
32 od, maintenance shall terminate upon the death of either party or upon
33 the recipient's valid or invalid marriage, or upon modification pursuant
34 to paragraph [(b)] b of subdivision nine of [section two hundred thir-
35 ty-six of] this part or section two hundred forty-eight of this [chap-
36 ter] article. Failure to state in an agreement between the parties, or
37 in a court order, that the recipient's re-marriage shall terminate an
38 award of maintenance, shall not prevent the termination of such mainte-
39 nance.
40 § 5. Section 170 of the domestic relations law is amended by adding a
41 new subdivision 7 to read as follows:
42 (7) Irreconcilable differences have arisen between the parties such
43 that there is no reasonable prospect of reconciliation. There shall be a
44 presumption that, after twelve consecutive months of separate habita-
45 tion, no reasonable prospect of reconciliation exists. Nothing in this
46 subdivision shall relieve a party from his or her obligation to comply
47 substantially with all the terms and conditions of any decree or judg-
48 ment of separation pursuant to subdivision five of this section or of
49 any written agreement of separation pursuant to subdivision six of this
50 section. The court shall not award summary judgment on any cause of
51 action brought pursuant to this subdivision. In the absence of a valid
52 written and fully executed agreement of separation, judgment in an
53 action brought pursuant to this subdivision shall not be granted until
54 the economic issues between the parties, including but not limited to,
55 the distribution of marital property, spousal support and child support,
S. 5667--B 3
1 and custody and visitation have been decided by the court and incorpo-
2 rated in the final judgment of divorce.
3 § 6. Subdivisions (a) and (b) of section 237 of the domestic relations
4 law, subdivision (a) as amended by chapter 482 of the laws of 1987 and
5 subdivision (b) as amended by chapter 892 of the laws of 1986, are
6 amended to read as follows:
7 (a) In any action or proceeding brought (1) to annul a marriage or to
8 declare the nullity of a void marriage, or (2) for a separation, or (3)
9 for a divorce, or (4) to declare the validity or nullity of a judgment
10 of divorce rendered against a spouse who was the defendant in any action
11 outside the State of New York and did not appear therein where such
12 spouse asserts the nullity of such foreign judgment, [or] (5) to obtain
13 maintenance or distribution of property following a foreign judgment of
14 divorce, or (6) to enjoin the prosecution in any other jurisdiction of
15 an action for a divorce, the court may direct either spouse or, where
16 an action for annulment is maintained after the death of a spouse, may
17 direct the person or persons maintaining the action, to pay [such sum or
18 sums of money] counsel fees and fees and expenses of experts directly to
19 the attorney of the other spouse to enable [that spouse] the other
20 party to carry on or defend the action or proceeding as, in the court's
21 discretion, justice requires, having regard to the circumstances of the
22 case and of the respective parties. [Such direction must be made in the
23 final judgment in such action or proceeding, or by one or more orders
24 from time to time before final judgment, or by both such order or orders
25 and the final judgment; provided, however, such direction shall be made
26 prior to final judgment where it is shown that such order is required to
27 enable the petitioning party to properly proceed] There shall be a
28 rebuttable presumption that counsel fees shall be awarded to the less
29 monied spouse. In exercising the court's discretion, the court shall
30 seek to assure that each party shall be adequately represented and that
31 where fees and expenses are to be awarded, they shall be awarded on a
32 timely basis, pendente lite, so as to enable adequate representation
33 from the commencement of the proceeding. Applications for the award of
34 fees and expenses may be made at any time or times prior to final judg-
35 ment. Both parties to the action or proceeding and their respective
36 attorneys, shall file an affidavit with the court detailing the finan-
37 cial agreement between the party and the attorney. Such affidavit shall
38 include the amount of any retainer, the amounts paid and still owing
39 thereunder, the hourly amount charged by the attorney, the amounts paid,
40 or to be paid, any experts, and any additional costs, disbursements or
41 expenses. Any applications for [counsel] fees and expenses may be main-
42 tained by the attorney for either spouse in his own name in the same
43 proceeding. Payment of any retainer fees to the attorney for the peti-
44 tioning party shall not preclude any awards of fees and expenses to an
45 applicant which would otherwise be allowed under this section.
46 (b) Upon any application to enforce, annul or modify an order or judg-
47 ment for alimony, maintenance, distributive award, distribution of mari-
48 tal property or for custody, visitation, or maintenance of a child, made
49 as in section two hundred thirty-six or section two hundred forty of
50 this article provided, or upon any application by writ of habeas corpus
51 or by petition and order to show cause concerning custody, visitation or
52 maintenance of a child, the court may direct a spouse or parent to pay
53 [such sum or sums of money for the prosecution or the defense of] coun-
54 sel fees and fees and expenses of experts directly to the attorney of
55 the other spouse or parent to enable the other party to carry on or
56 defend the application or proceeding by the other spouse or parent as,
S. 5667--B 4
1 in the court's discretion, justice requires, having regard to the
2 circumstances of the case and of the respective parties. [With respect
3 to any such application or proceeding, such direction may be made in the
4 order or judgment by which the particular application or proceeding is
5 finally determined, or by one or more orders from time to time before
6 the final order or judgment, or by both such order or orders and the
7 final order or judgment] There shall be a rebuttable presumption that
8 counsel fees shall be awarded to the less monied spouse. In exercising
9 the court's discretion, the court shall seek to assure that each party
10 shall be adequately represented and that where fees and expenses are to
11 be awarded, they shall be awarded on a timely basis, pendente lite, so
12 as to enable adequate representation from the commencement of the
13 proceeding. Applications for the award of fees and expenses may be made
14 at any time or times prior to final judgment. Both parties to the action
15 or proceeding and their respective attorneys, shall file an affidavit
16 with the court detailing the financial agreement, between the party and
17 the attorney. Such affidavit shall include the amount of any retainer,
18 the amounts paid and still owing thereunder, the hourly amount charged
19 by the attorney, the amounts paid, or to be paid, any experts, and any
20 additional costs, disbursements or expenses. Any applications for
21 [counsel] fees and expenses may be maintained by the attorney for either
22 spouse in counsel's own name in the same proceeding. [Representation by
23 an attorney pursuant to paragraph (b) of subdivision nine of section one
24 hundred eleven-b of the social services law shall not preclude an award
25 of counsel fees to an applicant which would otherwise be allowed under
26 this section.] Payment of any retainer fees to the attorney for the
27 petitioning party shall not preclude any awards of fees and expenses to
28 an applicant which would otherwise be allowed under this section.
29 § 7. Section 238 of the domestic relations law, as amended by chapter
30 529 of the laws of 1978, is amended to read as follows:
31 § 238. Expenses in enforcement and modification proceedings. In any
32 action or proceeding to [compel the payment of any sum of money required
33 to be paid by] enforce or modify any provision of a judgment or order
34 entered in an action for divorce, separation, annulment [or], declara-
35 tion of nullity of a void marriage, declaration of validity or nullity
36 of a judgment of divorce rendered against a spouse who was the defendant
37 in any action outside the state of New York and did not appear therein
38 where such spouse asserts the nullity of such foreign judgment, or an
39 injunction restraining the prosecution in any other jurisdiction of an
40 action for a divorce, or in any proceeding pursuant to section two
41 hundred forty-three, two hundred forty-four, two hundred forty-five, or
42 two hundred forty-six of this article, the court may in its discretion
43 require either party to pay [the expenses of the other in bringing,
44 carrying on, or defending such action or proceeding] counsel fees and
45 fees and expenses of experts directly to the attorney of the other party
46 to enable the other party to carry on or defend the action or proceeding
47 as, in the court's discretion, justice requires having regard to the
48 circumstances of the case and of the respective parties. There shall be
49 a rebuttable presumption that counsel fees shall be awarded to the less
50 monied spouse. In any such action or proceeding, applications for [coun-
51 sel] fees and expenses may be maintained by the attorney for the respec-
52 tive parties in counsel's own name and in counsel's own behalf. In
53 exercising the court's discretion, the court shall seek to assure that
54 each party shall be adequately represented and that where fees and
55 expenses are to be awarded, they shall be awarded on a timely basis,
56 pendente lite, so as to enable adequate representation from the
S. 5667--B 5
1 commencement of the proceeding. Applications for the award of fees and
2 expenses may be made at any time or times prior to final judgment. Both
3 parties to the action or proceeding and their respective attorneys,
4 shall file an affidavit with the court detailing the financial agreement
5 between the party and the attorney. Such affidavit shall include the
6 amount of any retainer, the amounts paid and still owing thereunder, the
7 hourly amount charged by the attorney, the amounts paid, or to be paid,
8 any experts, and any additional costs, disbursements or expenses.
9 Payment of any retainer fees to the attorney for the petitioning party
10 shall not preclude any awards of fees and expenses to an applicant which
11 would otherwise be allowed under this section.
12 § 8. Section 438 of the family court act, as amended by chapter 892 of
13 the laws of 1986, is amended to read as follows:
14 § 438. Counsel fees. (a) In any proceeding under this article, includ-
15 ing proceedings for support of a spouse or former spouse and children of
16 the parties, [or] for support of children only, [or at any hearing] in
17 any proceeding to modify or enforce an order entered in [that] a
18 proceeding under this article, or a proceeding to modify a decree of
19 divorce, separation, or annulment, including an appeal under article
20 eleven of this act, the court may allow counsel fees [at any stage of
21 the proceeding], and fees and expenses of experts directly, to the
22 attorney representing [the spouse, former spouse or person on behalf of
23 children] any party to enable such party to carry on or defend the
24 proceeding as, in the court's discretion, having regard to the circum-
25 stances of the case and of the respective parties. There shall be a
26 rebuttable presumption that counsel fees shall be awarded to the less
27 monied spouse. In exercising the court's discretion, the court shall
28 seek to assure that each party shall be adequately represented and that
29 where fees and expenses are to be awarded, they shall be awarded on a
30 timely basis, pendente lite, so as to enable adequate representation
31 from the commencement of the proceeding. Applications for the award of
32 fees and expenses may be made at any time or times prior to final judg-
33 ment. Both parties to the action or proceeding and their respective
34 attorneys shall file an affidavit with the court detailing the financial
35 agreement between the party and the attorney. Such affidavit shall
36 include the amount of any retainer, the amounts paid and still owing
37 thereunder, the hourly amount charged by the attorney, the amounts paid,
38 or to be paid, any experts, and any additional costs, disbursements or
39 expenses. Any applications for fees and expenses may be maintained by
40 the attorney for either spouse in counsel's own name in the same
41 proceeding. Payment of any retainer fees to the attorney for the peti-
42 tioning party shall not preclude any awards of fees and expenses to an
43 applicant which would otherwise be allowed under this section.
44 (b) In any proceeding for failure to obey any lawful order compelling
45 payment of support of a spouse or former spouse and children, or of
46 children only, the court shall, upon a finding that such failure was
47 willful, order respondent to pay counsel fees and fees and expenses of
48 experts directly to the attorney representing the petitioner or person
49 on behalf of the children. [Representation by an attorney pursuant to
50 paragraph (b) of subdivision nine of section one hundred eleven-b of the
51 social services law shall not preclude an award of counsel fees to an
52 applicant which would otherwise be allowed under this section.] Both
53 parties to the action or proceeding and their respective attorneys shall
54 file an affidavit with the court detailing the financial agreement
55 between the party and the attorney. Such affidavit shall include the
56 amount of any retainer, the amounts paid and still owing thereunder, the
S. 5667--B 6
1 hourly amount charged by the attorney, the amounts paid, or to be paid,
2 any experts and any additional costs, disbursements or expenses. Any
3 application for fees and expenses may be maintained by the attorney for
4 either spouse in his own name in the same proceeding. Payment of any
5 retainer fees to the attorney for the petitioning party shall not
6 preclude any awards of fees and expenses to an applicant which would
7 otherwise be allowed under this section.
8 § 9. This act shall take effect on the sixtieth day after it shall
9 have become a law and shall apply to any action or proceeding commenced
10 on or after such effective date.
