A07645 Summary:
BILL NO | A07645 |
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SAME AS | SAME AS S05678 |
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SPONSOR | Weinstein |
  | |
COSPNSR | Jaffee, Seawright, Simotas, Titus, Wright |
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MLTSPNSR | Brennan, Cook, Gottfried, Hevesi |
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Amd SS236 & 248, Dom Rel L; amd S412, Fam Ct Act | |
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Relates to the duration and amount of maintenance and of spousal support; establishes new formulas for the amount of maintenance and spousal support and factors the court can use to deviate from that amount. |
A07645 Actions:
BILL NO | A07645 | |||||||||||||||||||||||||||||||||||||||||||||||||
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05/20/2015 | referred to judiciary | |||||||||||||||||||||||||||||||||||||||||||||||||
05/28/2015 | reported referred to codes | |||||||||||||||||||||||||||||||||||||||||||||||||
06/08/2015 | reported referred to rules | |||||||||||||||||||||||||||||||||||||||||||||||||
06/10/2015 | reported | |||||||||||||||||||||||||||||||||||||||||||||||||
06/10/2015 | rules report cal.299 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/10/2015 | ordered to third reading rules cal.299 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/15/2015 | passed assembly | |||||||||||||||||||||||||||||||||||||||||||||||||
06/15/2015 | delivered to senate | |||||||||||||||||||||||||||||||||||||||||||||||||
06/15/2015 | REFERRED TO RULES | |||||||||||||||||||||||||||||||||||||||||||||||||
06/24/2015 | SUBSTITUTED FOR S5678 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/24/2015 | PASSED SENATE | |||||||||||||||||||||||||||||||||||||||||||||||||
06/24/2015 | RETURNED TO ASSEMBLY | |||||||||||||||||||||||||||||||||||||||||||||||||
09/15/2015 | delivered to governor | |||||||||||||||||||||||||||||||||||||||||||||||||
09/25/2015 | signed chap.269 |
A07645 Committee Votes:
Go to topA07645 Floor Votes:
Yes
Abbate
Yes
Corwin
Yes
Goodell
Yes
Lupardo
Yes
Paulin
Yes
Silver
Yes
Abinanti
Yes
Crespo
Yes
Gottfried
Yes
Lupinacci
Yes
Peoples-Stokes
Yes
Simanowitz
Yes
Arroyo
Yes
Crouch
Yes
Graf
Yes
Magee
Yes
Perry
Yes
Simon
Yes
Aubry
Yes
Curran
Yes
Gunther
Yes
Magnarelli
Yes
Persaud
Yes
Simotas
Yes
Barclay
Yes
Cusick
Yes
Hawley
Yes
Malliotakis
Yes
Pichardo
Yes
Skartados
Yes
Barrett
Yes
Cymbrowitz
Yes
Hevesi
Yes
Markey
Yes
Pretlow
Yes
Skoufis
Yes
Barron
Yes
Davila
Yes
Hikind
Yes
Mayer
Yes
Quart
Yes
Solages
Yes
Benedetto
Yes
DenDekker
Yes
Hooper
Yes
McDonald
Yes
Ra
Yes
Stec
Yes
Bichotte
Yes
Dilan
Yes
Jaffee
Yes
McDonough
Yes
Raia
Yes
Steck
Yes
Blake
Yes
Dinowitz
Yes
Jean-Pierre
Yes
McKevitt
Yes
Ramos
Yes
Stirpe
Yes
Blankenbush
Yes
DiPietro
Yes
Johns
Yes
McLaughlin
Yes
Richardson
Yes
Tedisco
Yes
Borelli
Yes
Duprey
Yes
Joyner
Yes
Miller
Yes
Rivera
Yes
Tenney
Yes
Brabenec
Yes
Englebright
Yes
Kaminsky
Yes
Montesano
Yes
Roberts
Yes
Thiele
Yes
Braunstein
Yes
Fahy
ER
Katz
Yes
Morelle
Yes
Robinson
Yes
Titone
Yes
Brennan
Yes
Farrell
Yes
Kavanagh
Yes
Mosley
Yes
Rodriguez
Yes
Titus
Yes
Brindisi
Yes
Finch
Yes
Kearns
Yes
Moya
Yes
Rosenthal
Yes
Walker
Yes
Bronson
Yes
Fitzpatrick
Yes
Kim
Yes
Murray
Yes
Rozic
Yes
Walter
Yes
Brook-Krasny
Yes
Friend
Yes
Kolb
No
Nojay
Yes
Russell
Yes
Weinstein
Yes
Buchwald
Yes
Galef
Yes
Lalor
Yes
Nolan
Yes
Ryan
Yes
Weprin
Yes
Butler
Yes
Gantt
Yes
Lavine
Yes
Oaks
Yes
Saladino
Yes
Woerner
Yes
Cahill
Yes
Garbarino
Yes
Lawrence
Yes
O'Donnell
Yes
Santabarbara
Yes
Wozniak
Yes
Ceretto
Yes
Giglio
Yes
Lentol
Yes
Ortiz
Yes
Schimel
Yes
Wright
ER
Clark
Yes
Gjonaj
Yes
Lifton
Yes
Otis
Yes
Schimminger
Yes
Zebrowski
Yes
Colton
Yes
Glick
Yes
Linares
Yes
Palmesano
Yes
Seawright
Yes
Mr. Speaker
Yes
Cook
Yes
Goldfeder
Yes
Lopez
Yes
Palumbo
Yes
Sepulveda
‡ Indicates voting via videoconference
A07645 Memo:
Go to topNEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)   BILL NUMBER: A7645 SPONSOR: Weinstein (MS)
  TITLE OF BILL: An act to amend the domestic relations law and the family court act, in relation to the duration and amount of maintenance and of spousal support This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Matrimoni- al Practice Advisory and Rules Committee. This measure would enact new guidelines for both temporary and post-di- vorce maintenance and spousal support. In developing this measure, Justice Jeffrey Sunshine, chair of the Advisory Committee, informally brought together lawyers belonging to different interest groups in an attempt to achieve a compromise on maintenance guidelines that addresses their sometimes conflicting concerns. Over a period of several months, meetings were held by a working group with participation by the Family Law Section of the New York State Bar Association, the New York Mainte- nance Standards Coalition, the Women's Bar Association of the State of New York, and the New York Chapter of the American Academy of Matrimoni- al Lawyers.{1} This measure is the result of their collective efforts. It recognizes the need to address the concerns of lower income communi- ties, domestic violence communities, families with middle class econom- ics and families with exceptional wealth. It was approved by the Advi- sory Committee by a vote of 26-1. As of the time the compromise measure was submitted by the Advisory Committee to the Chief Administrative Judge, the organizations who sent representatives to the working group all endorsed the compromise measure as follows: Women's Bar Association of the State of New York, the Executive Committee of the Family Law Section of the New York State Bar Association, the Board of Managers of the New York Chapter of the American Academy of Matrimonial Lawyers, and the New York State Maintenance Standards Coalition. Highlights of this measure, (revised to include technical amendments requested by the Chief Administrative Judge's Family Court Advisory and Rules Committee) include: 1. The income cap for the formula portion of temporary maintenance awards would be lowered from the current $543,000 to $175,000 of the payor's income. The same $175,000 cap would apply to post-divorce main- tenance awards. 2. There will be two formulas: one where child support will be paid and where the temporary or post-divorce maintenance payor is also the non- custodial parent for child support purposes; and one where child support will not be paid, or where it will be paid but the temporary or post-di- vorce maintenance payor is the custodial parent for child support purposes. Those formulas are as follows: a. With child support where the maintenance payor is also the non-custo- dial parent for child support purposes: (i) subtract 25% of the mainte- nance payee's income from 20% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance; b. Without child support, or with child support but where the mainte- nance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee's income from 30% of the mainte- nance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the main- tenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance. 3. The court may adjust the guideline amount of maintenance up to the cap where it finds that the guideline amount of maintenance is unjust or inappropriate after consideration of one or more factors, which shall be set forth in the court's written or on the record decision. Where there is income over the cap, additional maintenance may be awarded after consideration of one or more factors, which shall be set forth in the court's decision or on the record. 4. Temporary maintenance terminates no later than the issuance of a judgment of divorce or the death of either party - i.e., clarifying that the Supreme Court has the power to limit the duration of temporary main- tenance. 5. Post-divorce maintenance terminates on the death of either party or the remarriage of the payee former spouse. 6. In determining temporary maintenance, the court can allocate the responsibility for payment of specific family expenses between the parties. 7. The definition of income for post-divorce maintenance will include income from income-producing property that is being equitably distrib- uted (also see "8" below). 8. New factors in post-divorce maintenance will include: termination of child support, income or imputed income on assets being equitably distributed, etc. 9. Durational formula for post-divorce maintenance is advisory, and the durational periods contain ranges to afford courts more discretion. The advisory durational formula in this measure contains more realistic durations for payment of post-divorce maintenance than were included in the maintenance guidelines legislation nearly enacted last spring (see Senate 7266-A/Assembly 9606-A (2013-14)). However, nothing in the instant measure would prevent the court from awarding non-durational, post-divorce maintenance in an appropriate case. 10. In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligi- bility age. 11. Actual or partial retirement will be a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income. 12. Elimination of enhanced earning capacity as a marital asset. 13. D.R.L. section 248 made gender neutral. 14. Spousal support guidelines are established for Family Court using the same two formulas set forth for maintenance guidelines in "2" above, as follows: one where child support will be paid and where the spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where child support will be paid but the spousal support payor is the custodial parent for child support purposes. The same $175,000 income cap applies. The court may adjust the guideline amount of spousal support up to the cap where it finds that the guideline amount of spousal support is unjust or inappropriate after consideration of one or more factors, which shall be set forth in the court's written or on the record deci- sion. Where there is income over the cap, additional spousal support may be awarded after consideration of one or more factors, which shall be set forth in the court's written or on the record decision. 15. A new factor in spousal support awards as well as maintenance awards is termination of a child support award. 16. The Family Court may modify an order of spousal support upon a show- ing of a substantial change in circumstances. Unless so modified, spous- al support orders set pursuant to the guidelines shall continue until the earliest to occur of a written or oral stipulation/agreement on the record, issuance of a judgment of divorce or other order in a matrimoni- al proceeding, or the death of either party. This measure does not change current law with respect to Family Court's ability to terminate spousal support. In addition, with the advent of no-fault divorce (D.R.L. § 170(7)), payors have the ability to terminate spousal support by obtaining a divorce without having to prove fault simply stating that "the relationship between the parties has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath." As noted above, this measure is a compromise from the maintenance guide- lines bill introduced in the Legislature last year. That measure, had it been enacted, would have amended the current temporary maintenance guidelines in effect pursuant to D.R.L. § 236(B) (5-a), and would have adopted final maintenance and spousal support guidelines for the first time in New York. For the temporary maintenance guidelines currently effective pursuant to D.R.L. § 236(B) (5-a), calculations of permanent maintenance are not required. As calculations of permanent maintenance for uncontested divorces will be required for the first time under this measure, our Advisory Committee recommends development of a new calculator for use in Supreme Court. The temporary maintenance calculator currently in use in Supreme Court was developed by the Office of Court Administration in 2010 when the temporary maintenance guidelines were adopted. It requires the user to calculate income under the Child Support Standards Act sepa- rately on a worksheet, and then input the result into the calculator.{2} Our Advisory Committee recommends that the new calculator perform the calculation of Child Support Standards Act ("CSSA") income for the user.{3} After calculating CSSA income, the calculator would calculate temporary maintenance or permanent maintenance, as the case may be, and then, if applicable, would also calculate child support. We believe that introduction of this tool in Supreme Court will make the transition to maintenance guidelines for permanent maintenance and uncontested divorces much easier for the general public and the Judiciary. Under this measure, judges are required to compute the guideline amount of maintenance in every case up to the income cap of $175,000. This tool will be an asset to the efficiency and smooth operation of the court system. Section 8 of this measure provides that the act takes effect 120 days after it becomes law and applies to all matrimonial and Family Court actions for spousal support commenced on or after such effective date, including the provisions regarding post-divorce maintenance and spousal support awards. However, the provisions of this measure regarding tempo- rary maintenance would take effect 30 days after the measure becomes law. We call for a shorter effective date for temporary maintenance because the courts and the public are already familiar with procedures for temporary maintenance awards. There already is in effect a temporary maintenance worksheet and temporary maintenance calculator posted on the Office of Court Administration's Divorce Resources Website at http://www.nycourts.gov/divorce/Temporary Maintenance.shtm1 with respect to implementation of the current temporary maintenance guide- lines in effect pursuant to DRL 236(B)(5-a) enacted in 2010. These tools can be easily modified to comply with the new provisions of this measure. By contrast, the post-divorce maintenance and spousal support provisions of the measure are completely new, and therefore the Office of Court Administration will need additional time for training as well as for creating new forms and procedures to implement the new provisions. Similarly, the bench and the bar will need more time to adapt to the new law. In addition, there was widespread concern that the formula in existence for temporary maintenance yielded significantly unfair awards for temporary maintenance payors with child support obli- gations, thus justifying a shorter startup period. This measure would have no fiscal impact upon the State.   LEGISLATIVE HISTORY: None. New proposal. {1} Sandra Rivera, Esq. and Michelle Haskins, Esq. represented the Women's Bar Association of the State of New York; Alton Abramowitz, Esq. and Eric Tepper, Esq. represented the Family Law Section of the New York State Bar Association; Elena Karabatos, Esq. represented the New York Chapter of the American Academy of Matrimonial Lawyers; and Emily Ruben, Esq. and Kate Wurmfeld, Esq. represented the NYS Maintenance Standards Coalition. {2} In Family Court, the calculations are performed automatically in the UCMS system which is not used in Supreme Court. {3} This measure requires one variation from calculation of income under the Child Support Standards Act for purposes of calculating maintenance, namely that alimony or maintenance actually paid or to be paid to a spouse that is a party to the instant action should not be deducted from income. This variation from the calculation of income under the Child Support Standards Act in the measure is necessary because otherwise the formula becomes circular by requiring deduction of the very amount that is being calculated.
A07645 Text:
Go to top STATE OF NEW YORK ________________________________________________________________________ 7645 2015-2016 Regular Sessions IN ASSEMBLY May 20, 2015 ___________ Introduced by M. of A. WEINSTEIN, JAFFEE, SEAWRIGHT, SIMOTAS, TITUS, WRIGHT -- Multi-Sponsored by -- M. of A. BRENNAN, COOK, GOTTFRIED, HEVESI -- (at request of the Office of Court Administration) -- read once and referred to the Committee on Judiciary AN ACT to amend the domestic relations law and the family court act, in relation to the duration and amount of maintenance and of spousal support The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraph a of subdivision 1 of part B of section 236 of 2 the domestic relations law, as amended by chapter 371 of the laws of 3 2010, is amended to read as follows: 4 a. The term "maintenance" shall mean payments provided for in a valid 5 agreement between the parties or awarded by the court in accordance with 6 the provisions of subdivisions five-a and six of this part, to be paid 7 at fixed intervals for a definite or indefinite period of time, but an 8 award of maintenance shall terminate upon the death of either party or 9 upon the [recipient's] payee's valid or invalid marriage, or upon 10 modification pursuant to paragraph [(b)] b of subdivision nine of 11 [section two hundred thirty-six of] this part or section two hundred 12 forty-eight of this chapter. 13 § 2. Subparagraph 7 of paragraph d of subdivision 5 of part B of 14 section 236 of the domestic relations law, as amended by chapter 281 of 15 the laws of 1980 and as renumbered by chapter 229 of the laws of 2009, 16 is amended to read as follows: 17 (7) any equitable claim to, interest in, or direct or indirect 18 contribution made to the acquisition of such marital property by the 19 party not having title, including joint efforts or expenditures and 20 contributions and services as a spouse, parent, wage earner and homemak- 21 er, and to the career or career potential of the other party. The court 22 shall not consider as marital property subject to distribution the value EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10788-02-5A. 7645 2 1 of a spouse's enhanced earning capacity arising from a license, degree, 2 celebrity goodwill, or career enhancement. However, in arriving at an 3 equitable division of marital property, the court shall consider the 4 direct or indirect contributions to the development during the marriage 5 of the enhanced earning capacity of the other spouse; 6 § 3. Subdivision 5-a of part B of section 236 of the domestic 7 relations law, as added by chapter 371 of the laws of 2010, is amended 8 to read as follows: 9 5-a. Temporary maintenance awards. a. Except where the parties have 10 entered into an agreement [pursuant to subdivision three of this part] 11 providing for maintenance pursuant to subdivision three of this part, in 12 any matrimonial action the court, upon application by a party, shall 13 make its award for temporary maintenance pursuant to the provisions of 14 this subdivision. 15 b. For purposes of this subdivision, the following definitions shall 16 be used: 17 (1) "Payor" shall mean the spouse with the higher income. 18 (2) "Payee" shall mean the spouse with the lower income. 19 (3) "Length of marriage" shall mean the period from the date of 20 marriage until the date of commencement of action. 21 (4) "Income" shall mean[:22(a)] income as defined in the child support standards act and codified 23 in section two hundred forty of this article and section four hundred 24 thirteen of the family court act[; and25(b) income from income producing property to be distributed pursuant26to subdivision five of this part] without subtracting alimony or mainte- 27 nance actually paid or to be paid to a spouse that is a party to the 28 instant action pursuant to subclause (C) of clause (vii) of subparagraph 29 five of paragraph (b) of subdivision one-b of section two hundred forty 30 of this article and subclause (C) of clause (vii) of subparagraph five 31 of paragraph (b) of subdivision one of section four hundred thirteen of 32 the family court act and without subtracting spousal support paid pursu- 33 ant to section four hundred twelve of such act. 34 (5) "Income cap" shall mean up to and including [five hundred] one 35 hundred seventy-five thousand dollars of the payor's annual income; 36 provided, however, beginning January thirty-first, two thousand [twelve] 37 sixteen and every two years thereafter, the [payor's annual] income cap 38 amount shall increase by the [product] sum of the average annual 39 percentage changes in the consumer price index for all urban consumers 40 (CPI-U) as published by the United States department of labor bureau of 41 labor statistics for the prior two [year period] years multiplied by the 42 then income cap and then rounded to the nearest one thousand dollars. 43 The office of court administration shall determine and publish the 44 income cap. 45 (6) "Guideline amount of temporary maintenance" shall mean the [sum] 46 dollar amount derived by the application of paragraph c or d of this 47 subdivision. 48 (7) ["Guideline duration" shall mean the durational period determined49by the application of paragraph d of this subdivision] "Self-support 50 reserve" shall mean the self-support reserve as defined in the child 51 support standards act and codified in section two hundred forty of this 52 article and section four hundred thirteen of the family court act. 53 (8) ["Presumptive award" shall mean the guideline amount of the tempo-54rary maintenance award for the guideline duration prior to the court's55application of any adjustment factors as provided in subparagraph one of56paragraph e of this subdivision.A. 7645 3 1(9) "Self-support reserve" shall mean the self-support reserve as2defined in the child support standards act and codified in section two3hundred forty of this article and section four hundred thirteen of the4family court act] "Agreement" shall have the same meaning as provided in 5 subdivision three of this part. 6 c. [The] Where the payor's income is lower than or equal to the income 7 cap, the court shall determine the guideline amount of temporary mainte- 8 nance [in accordance with the provisions of this paragraph after deter-9mining the income of the parties] as follows: 10 (1) Where [the payor's income is up to and including the income cap] 11 child support will be paid for children of the marriage and where the 12 payor as defined in this subdivision is also the non-custodial parent 13 pursuant to the child support standards act: 14 (a) the court shall subtract [twenty] twenty-five percent of the 15 payee's income [of the payee] from [thirty] twenty percent of the 16 payor's income [up to the income cap of the payor]. 17 (b) the court shall then multiply the sum of the payor's income [up to18and including the income cap] and [all of] the payee's income by forty 19 percent. 20 (c) the court shall subtract the payee's income [of the payee] from 21 the amount derived from clause (b) of this subparagraph. 22 (d) the court shall determine the lower of the two amounts derived by 23 clauses (a) and (c) of this subparagraph. 24 (e) the guideline amount of temporary maintenance shall be the [lower25of the amounts] amount determined by [clauses (a) and (c) of this26subparagraph;] clause (d) of this subparagraph except that, if the 27 amount determined by clause [(c) of this subparagraph] (d) of this 28 subparagraph is less than or equal to zero, the guideline amount of 29 temporary maintenance shall be zero dollars. 30 (f) temporary maintenance shall be calculated prior to child support 31 because the amount of temporary maintenance shall be subtracted from the 32 payor's income and added to the payee's income as part of the calcu- 33 lation of the child support obligation. 34 (2) Where [the income of the payor exceeds the income cap:35(a) the court shall determine the guideline amount of temporary main-36tenance for that portion of the payor's income that is up to and includ-37ing the income cap according to subparagraph one of this paragraph, and,38for the payor's income in excess of the income cap, the court shall39determine any additional guideline amount of temporary maintenance40through consideration of the following factors:41(i) the length of the marriage;42(ii) the substantial differences in the incomes of the parties;43(iii) the standard of living of the parties established during the44marriage;45(iv) the age and health of the parties;46(v) the present and future earning capacity of the parties;47(vi) the need of one party to incur education or training expenses;48(vii) the wasteful dissipation of marital property;49(viii) the transfer or encumbrance made in contemplation of a matrimo-50nial action without fair consideration;51(ix) the existence and duration of a pre-marital joint household or a52pre-divorce separate household;53(x) acts by one party against another that have inhibited or continue54to inhibit a party's earning capacity or ability to obtain meaningful55employment. Such acts include but are not limited to acts of domesticA. 7645 4 1violence as provided in section four hundred fifty-nine-a of the social2services 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-5dren or stepchildren, elderly parents or in-laws that has inhibited or6continues to inhibit a party's earning capacity or ability to obtain7meaningful employment;8(xiii) the inability of one party to obtain meaningful employment due9to age or absence from the workforce;10(xiv) the need to pay for exceptional additional expenses for the11child or children, including, but not limited to, schooling, day care12and medical treatment;13(xv) the tax consequences to each party;14(xvi) marital property subject to distribution pursuant to subdivision15five of this part;16(xvii) the reduced or lost earning capacity of the party seeking17temporary maintenance as a result of having foregone or delayed educa-18tion, training, employment or career opportunities during the marriage;19(xviii) the contributions and services of the party seeking temporary20maintenance as a spouse, parent, wage earner and homemaker and to the21career or career potential of the other party; and22(xix) any other factor which the court shall expressly find to be just23and proper.24(b) In any decision made pursuant to this subparagraph, the court25shall set forth the factors it considered and the reasons for its deci-26sion. Such written order may not be waived by either party or counsel.] 27 child support will not be paid for children of the marriage, or where 28 child support will be paid for children of the marriage but the payor as 29 defined in this subdivision is the custodial parent pursuant to the 30 child support standards act: 31 (a) the court shall subtract twenty percent of the payee's income from 32 thirty percent of the payor's income. 33 (b) the court shall then multiply the sum of the payor's income and 34 the payee's income by forty percent. 35 (c) the court shall subtract the payee's income from the amount 36 derived from clause (b) of this subparagraph. 37 (d) the court shall determine the lower of the two amounts derived by 38 clauses (a) and (c) of this subparagraph. 39 (e) the guideline amount of temporary maintenance shall be the amount 40 determined by clause (d) of this subparagraph except that, if the amount 41 determined by clause (d) of this subparagraph is less than or equal to 42 zero, the guideline amount of temporary maintenance shall be zero 43 dollars. 44 (f) if child support will be paid for children of the marriage but the 45 payor as defined in this subdivision is the custodial parent pursuant to 46 the child support standards act, temporary maintenance shall be calcu- 47 lated prior to child support because the amount of temporary maintenance 48 shall be subtracted from the payor's income pursuant to this subdivision 49 and added to the payee's income pursuant to this subdivision as part of 50 the calculation of the child support obligation. 51 [(3) Notwithstanding the provisions of this paragraph, where the52guideline amount of temporary maintenance would reduce the payor's53income below the self-support reserve for a single person, the presump-54tive amount of the guideline amount of temporary maintenance shall be55the difference between the payor's income and the self-support reserve.A. 7645 5 1If the payor's income is below the self-support reserve, there is a2rebuttable presumption that no temporary maintenance is awarded.] 3 d. [The] Where the payor's income exceeds the income cap, the court 4 shall determine the guideline [duration] amount of temporary maintenance 5 [by considering the length of the marriage. Temporary maintenance shall6terminate upon the issuance of the final award of maintenance or the7death of either party, whichever occurs first] as follows: 8 (1) the court shall perform the calculations set forth in paragraph c 9 of this subdivision for the income of the payor up to and including the 10 income cap; and 11 (2) for income exceeding the cap, the amount of additional maintenance 12 awarded, if any, shall be within the discretion of the court which shall 13 take into consideration any one or more of the factors set forth in 14 subparagraph one of paragraph h of this subdivision; and 15 (3) the court shall set forth the factors it considered and the 16 reasons for its decision in writing or on the record. Such decision, 17 whether in writing or on the record, may not be waived by either party 18 or counsel. 19 e. [(1) The court shall order the presumptive award of temporary main-20tenance in accordance with paragraphs c and d of this subdivision,21unless the court finds that the presumptive award is unjust or inappro-22priate and adjusts the presumptive award of temporary maintenance23accordingly based upon consideration of the following factors:24(a) the standard of living of the parties established during the25marriage;26(b) the age and health of the parties;27(c) the earning capacity of the parties;28(d) the need of one party to incur education or training expenses;29(e) the wasteful dissipation of marital property;30(f) the transfer or encumbrance made in contemplation of a matrimonial31action without fair consideration;32(g) the existence and duration of a pre-marital joint household or a33pre-divorce separate household;34(h) acts by one party against another that have inhibited or continue35to inhibit a party's earning capacity or ability to obtain meaningful36employment. Such acts include but are not limited to acts of domestic37violence as provided in section four hundred fifty-nine-a of the social38services law;39(i) the availability and cost of medical insurance for the parties;40(j) the care of the children or stepchildren, disabled adult children41or stepchildren, elderly parents or in-laws that has inhibited or42continues to inhibit a party's earning capacity or ability to obtain43meaningful employment;44(k) the inability of one party to obtain meaningful employment due to45age or absence from the workforce;46(l) the need to pay for exceptional additional expenses for the child47or children, including, but not limited to, schooling, day care and48medical treatment;49(m) the tax consequences to each party;50(n) marital property subject to distribution pursuant to subdivision51five of this part;52(o) the reduced or lost earning capacity of the party seeking tempo-53rary maintenance as a result of having foregone or delayed education,54training, employment or career opportunities during the marriage;A. 7645 6 1(p) the contributions and services of the party seeking temporary2maintenance as a spouse, parent, wage earner and homemaker and to the3career or career potential of the other party; and4(q) any other factor which the court shall expressly find to be just5and proper.6(2) Where the court finds that the presumptive award of temporary7maintenance is unjust or inappropriate and the court adjusts the8presumptive award of temporary maintenance pursuant to this paragraph,9the court shall set forth, in a written order, the amount of the unad-10justed presumptive award of temporary maintenance, the factors it11considered, and the reasons that the court adjusted the presumptive12award of temporary maintenance. Such written order shall not be waived13by either party or counsel.14(3) Where either or both parties are unrepresented, the court shall15not enter a temporary maintenance order unless the unrepresented party16or parties have been informed of the presumptive award of temporary17maintenance] Notwithstanding the provisions of this subdivision, where 18 the guideline amount of temporary maintenance would reduce the payor's 19 income below the self-support reserve for a single person, the guideline 20 amount of temporary maintenance shall be the difference between the 21 payor's income and the self-support reserve. If the payor's income is 22 below the self-support reserve, there shall be a rebuttable presumption 23 that no temporary maintenance is awarded. 24 f. [A validly executed agreement or stipulation voluntarily entered25into between the parties in an action commenced after the effective date26of this subdivision presented to the court for incorporation in an order27shall include a provision stating that the parties have been advised of28the provisions of this subdivision, and that the presumptive award29provided for therein results in the correct amount of temporary mainte-30nance. In the event that such agreement or stipulation deviates from the31presumptive award of temporary maintenance, the agreement or stipulation32must specify the amount that such presumptive award of temporary mainte-33nance would have been and the reason or reasons that such agreement or34stipulation does not provide for payment of that amount. Such provision35may not be waived by either party or counsel. Nothing contained in this36subdivision shall be construed to alter the rights of the parties to37voluntarily enter into validly executed agreements or stipulations which38deviate from the presumptive award of temporary maintenance provided39such agreements or stipulations comply with the provisions of this40subdivision.] The court shall[, however, retain discretion with respect41to temporary, and post-divorce maintenance awards pursuant to this42section. Any court order incorporating a validly executed agreement or43stipulation which deviates from the presumptive award of temporary main-44tenance shall set forth the court's reasons for such deviation] deter- 45 mine the duration of temporary maintenance by considering the length of 46 the marriage. 47 g. [When a party has defaulted and/or the court is otherwise presented48with insufficient evidence to determine gross income, the court shall49order the temporary maintenance award based upon the needs of the payee50or the standard of living of the parties prior to commencement of the51divorce action, whichever is greater. Such order may be retroactively52modified upward without a showing of change in circumstances upon a53showing of newly discovered or obtained evidence.] Temporary maintenance 54 shall terminate no later than the issuance of the judgment of divorce or 55 the death of either party, whichever occurs first.A. 7645 7 1 h. [In any action or proceeding for modification of an order of main-2tenance or alimony existing prior to the effective date of this subdivi-3sion, brought pursuant to this article, the temporary maintenance guide-4lines set forth in this subdivision shall not constitute a change of5circumstances warranting modification of such support order] (1) The 6 court shall order the guideline amount of temporary maintenance up to 7 the income cap in accordance with paragraph c of this subdivision, 8 unless the court finds that the guideline amount of temporary mainte- 9 nance is unjust or inappropriate, which finding shall be based upon 10 consideration of any one or more of the following factors, and adjusts 11 the guideline amount of temporary maintenance accordingly based upon 12 such consideration: 13 (a) the age and health of the parties; 14 (b) the present or future earning capacity of the parties, including a 15 history of limited participation in the workforce; 16 (c) the need of one party to incur education or training expenses; 17 (d) the termination of a child support award during the pendency of 18 the temporary maintenance award when the calculation of temporary main- 19 tenance was based upon child support being awarded and which resulted in 20 a maintenance award lower than it would have been had child support not 21 been awarded; 22 (e) the wasteful dissipation of marital property, including transfers 23 or encumbrances made in contemplation of a matrimonial action without 24 fair consideration; 25 (f) the existence and duration of a pre-marital joint household or a 26 pre-divorce separate household; 27 (g) 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 (h) the availability and cost of medical insurance for the parties; 33 (i) 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 (j) the tax consequences to each party; 37 (k) the standard of living of the parties established during the 38 marriage; 39 (l) the reduced or lost earning capacity of the payee as a result of 40 having forgone or delayed education, training, employment or career 41 opportunities during the marriage; and 42 (m) any other factor which the court shall expressly find to be just 43 and proper. 44 (2) Where the court finds that the guideline amount of temporary main- 45 tenance is unjust or inappropriate and the court adjusts the guideline 46 amount of temporary maintenance pursuant to this paragraph, the court 47 shall set forth, in a written decision or on the record, the guideline 48 amount of temporary maintenance, the factors it considered, and the 49 reasons that the court adjusted the guideline amount of temporary main- 50 tenance. Such decision, whether in writing or on the record, shall not 51 be waived by either party or counsel. 52 (3) Where either or both parties are unrepresented, the court shall 53 not enter a temporary maintenance order unless the court informs the 54 unrepresented party or parties of the guideline amount of temporary 55 maintenance.A. 7645 8 1 i. [In any decision made pursuant to] Nothing contained in this subdi- 2 vision [the court] shall[, where appropriate, consider the effect of a3barrier to remarriage, as defined in subdivision six of section two4hundred fifty-three of this article, on the factors enumerated in this5subdivision] be construed to alter the rights of the parties to volun- 6 tarily enter into agreements or stipulations as defined in subdivision 7 three of this part which deviate from the presumptive award of temporary 8 maintenance. 9 j. When a payor has defaulted and/or the court is otherwise presented 10 with insufficient evidence to determine income, the court shall order 11 the temporary maintenance award based upon the needs of the payee or the 12 standard of living of the parties prior to commencement of the divorce 13 action, whichever is greater. Such order may be retroactively modified 14 upward without a showing of change in circumstances upon a showing of 15 newly discovered evidence. 16 k. In any action or proceeding for modification of an order of mainte- 17 nance or alimony existing prior to the effective date of this subdivi- 18 sion, brought pursuant to this article, the temporary maintenance guide- 19 lines set forth in this subdivision shall not constitute a change of 20 circumstances warranting modification of such support order. 21 l. In any action or proceeding for modification where the parties have 22 entered into an agreement providing for maintenance pursuant to subdivi- 23 sion three of this part entered into prior to the effective date of this 24 subdivision, brought pursuant to this article, the temporary maintenance 25 guidelines set forth in this subdivision shall not constitute a change 26 of circumstances warranting modification of such support order. 27 m. In determining temporary maintenance, the court shall consider and 28 allocate, where appropriate, the responsibilities of the respective 29 spouses for the family's expenses during the pendency of the proceeding. 30 n. The temporary maintenance order shall not prejudice the rights of 31 either party regarding a post-divorce maintenance award. 32 § 4. Subdivision 6 of part B of section 236 of the domestic relations 33 law, as amended by chapter 371 of the laws of 2010, is amended to read 34 as follows: 35 6. Post-divorce maintenance awards. a. Except where the parties have 36 entered into an agreement pursuant to subdivision three of this part 37 providing for maintenance, in any matrimonial action, the court [may38order], upon application by a party, shall make its award for post-di- 39 vorce maintenance [in such amount as justice requires, having regard for40the standard of living of the parties established during the marriage,41whether the party in whose favor maintenance is granted lacks sufficient42property and income to provide for his or her reasonable needs and43whether the other party has sufficient property or income to provide for44the reasonable needs of the other and the circumstances of the case and45of the respective parties. Such order shall be effective as of the date46of the application therefor, and any retroactive amount of maintenance47due shall be paid in one sum or periodic sums, as the court shall48direct, taking into account any amount of temporary maintenance which49has been paid. In determining the amount and duration of maintenance the50court shall consider:51(1) the income and property of the respective parties including mari-52tal property distributed pursuant to subdivision five of this part;53(2) the length of the marriage;54(3) the age and health of both parties;55(4) the present and future earning capacity of both parties;56(5) the need of one party to incur education or training expenses;A. 7645 9 1(6) the existence and duration of a pre-marital joint household or a2pre-divorce separate household;3(7) acts by one party against another that have inhibited or continue4to inhibit a party's earning capacity or ability to obtain meaningful5employment. Such acts include but are not limited to acts of domestic6violence as provided in section four hundred fifty-nine-a of the social7services law;8(8) the ability of the party seeking maintenance to become self-sup-9porting and, if applicable, the period of time and training necessary10therefor;11(9) reduced or lost lifetime earning capacity of the party seeking12maintenance as a result of having foregone or delayed education, train-13ing, employment, or career opportunities during the marriage;14(10) the presence of children of the marriage in the respective homes15of the parties;16(11) the care of the children or stepchildren, disabled adult children17or stepchildren, elderly parents or in-laws that has inhibited or18continues to inhibit a party's earning capacity;19(12) the inability of one party to obtain meaningful employment due to20age or absence from the workforce;21(13) the need to pay for exceptional additional expenses for the22child/children, including but not limited to, schooling, day care and23medical treatment;24(14) the tax consequences to each party;25(15) the equitable distribution of marital property;26(16) contributions and services of the party seeking maintenance as a27spouse, parent, wage earner and homemaker, and to the career or career28potential of the other party;29(17) the wasteful dissipation of marital property by either spouse;30(18) the transfer or encumbrance made in contemplation of a matrimoni-31al action without fair consideration;32(19) the loss of health insurance benefits upon dissolution of the33marriage, and the availability and cost of medical insurance for the34parties; and35(20) any other factor which the court shall expressly find to be just36and proper] pursuant to the provisions of this subdivision. 37 b. [In any decision made pursuant to this subdivision, the court shall38set forth the factors it considered and the reasons for its decision and39such may not be waived by either party or counsel] For purposes of this 40 subdivision, the following definitions shall be used: 41 (1) "Payor" shall mean the spouse with the higher income. 42 (2) "Payee" shall mean the spouse with the lower income. 43 (3) "Income" shall mean: 44 (a) income as defined in the child support standards act and codified 45 in section two hundred forty of this article and section four hundred 46 thirteen of the family court act, without subtracting alimony or mainte- 47 nance actually paid or to be paid to a spouse that is a party to the 48 instant action pursuant to subclause (C) of clause (vii) of subparagraph 49 five of paragraph (b) of subdivision one-b of section two hundred forty 50 of this article and subclause (C) of clause (vii) of subparagraph five 51 of paragraph (b) of subdivision one of section four hundred thirteen of 52 the family court act and without subtracting spousal support paid pursu- 53 ant to section four hundred twelve of such act; and 54 (b) income from income-producing property distributed or to be 55 distributed pursuant to subdivision five of this part.A. 7645 10 1 (4) "Income cap" shall mean up to and including one hundred seventy- 2 five thousand dollars of the payor's annual income; provided, however, 3 beginning January thirty-first, two thousand sixteen and every two years 4 thereafter, the income cap amount shall increase by the sum of the aver- 5 age annual percentage changes in the consumer price index for all urban 6 consumers (CPI-U) as published by the United States department of labor 7 bureau of labor statistics for the prior two years multiplied by the 8 then income cap and then rounded to the nearest one thousand dollars. 9 The office of court administration shall determine and publish the 10 income cap. 11 (5) "Guideline amount of post-divorce maintenance" shall mean the 12 dollar amount derived by the application of paragraph c or d of this 13 subdivision. 14 (6) "Guideline duration of post-divorce maintenance" shall mean the 15 durational period determined by the application of paragraph f of this 16 subdivision. 17 (7) "Post-divorce maintenance guideline obligation" shall mean the 18 guideline amount of post-divorce maintenance and the guideline duration 19 of post-divorce maintenance. 20 (8) "Length of marriage" shall mean the period from the date of 21 marriage until the date of commencement of the action. 22 (9) "Self-support reserve" shall mean the self-support reserve as 23 defined in the child support standards act and codified in section two 24 hundred forty of this article and section four hundred thirteen of the 25 family court act. 26 (10) "Agreement" shall have the same meaning as provided in subdivi- 27 sion three of this part. 28 c. [The court may award permanent maintenance, but an award of mainte-29nance shall terminate upon the death of either party or upon the recipi-30ent's valid or invalid marriage, or upon modification pursuant to para-31graph b of subdivision nine of this part or section two hundred32forty-eight of this chapter] Where the payor's income is lower than or 33 equal to the income cap, the court shall determine the guideline amount 34 of post-divorce maintenance as follows: 35 (1) Where child support will be paid for children of the marriage and 36 where the payor as defined in this subdivision is also the non-custodial 37 parent pursuant to the child support standards act: 38 (a) the court shall subtract twenty-five percent of the payee's income 39 from twenty percent of the payor's income. 40 (b) the court shall then multiply the sum of the payor's income and 41 the payee's income by forty percent. 42 (c) the court shall subtract the payee's income from the amount 43 derived from clause (b) of this subparagraph. 44 (d) the court shall determine the lower of the two amounts derived by 45 clauses (a) and (c) of this subparagraph. 46 (e) the guideline amount of post-divorce maintenance shall be the 47 amount determined by clause (d) of this subparagraph except that, if the 48 amount determined by clause (d) of this subparagraph is less than or 49 equal to zero, the guideline amount of post-divorce maintenance shall be 50 zero dollars. 51 (f) notwithstanding the provisions of this subdivision, where the 52 guideline amount of post-divorce maintenance would reduce the payor's 53 income below the self-support reserve for a single person, the guideline 54 amount of post-divorce maintenance shall be the difference between the 55 payor's income and the self-support reserve. If the payor's income isA. 7645 11 1 below the self-support reserve, there shall be a rebuttable presumption 2 that no post-divorce maintenance is awarded. 3 (g) maintenance shall be calculated prior to child support because the 4 amount of maintenance shall be subtracted from the payor's income and 5 added to the payee's income as part of the calculation of the child 6 support obligation. 7 (2) Where child support will not be paid for children of the marriage, 8 or where child support will be paid for children of the marriage but the 9 payor as defined in this subdivision is the custodial parent pursuant to 10 the child support standards act: 11 (a) the court shall subtract twenty percent of the payee's income from 12 thirty percent of the payor's income. 13 (b) the court shall then multiply the sum of the payor's income and 14 the payee's income by forty percent. 15 (c) the court shall subtract the payee's income from the amount 16 derived from clause (b) of this subparagraph. 17 (d) the court shall determine the lower of the two amounts derived by 18 clauses (a) and (c) of this subparagraph. 19 (e) the guideline amount of post-divorce maintenance shall be the 20 amount determined by clause (d) of this subparagraph except that, if the 21 amount determined by clause (d) of this subparagraph is less than or 22 equal to zero, the guideline amount of post-divorce maintenance shall be 23 zero dollars. 24 (f) if child support will be paid for children of the marriage but the 25 payor as defined in this subdivision is the custodial parent pursuant to 26 the child support standards act, post-divorce maintenance shall be 27 calculated prior to child support because the amount of post-divorce 28 maintenance shall be subtracted from the payor's income pursuant to this 29 subdivision and added to the payee's income pursuant to this subdivision 30 as part of the calculation of the child support obligation. 31 (g) notwithstanding the provisions of this subdivision, where the 32 guideline amount of post-divorce maintenance would reduce the payor's 33 income below the self-support reserve for a single person, the guideline 34 amount of post-divorce maintenance shall be the difference between the 35 payor's income and the self-support reserve. If the payor's income is 36 below the self-support reserve, there shall be a rebuttable presumption 37 that no post-divorce maintenance is awarded. 38 d. [In any decision made pursuant to this subdivision the court shall,39where appropriate, consider the effect of a barrier to remarriage, as40defined in subdivision six of section two hundred fifty-three of this41article, on the factors enumerated in paragraph a of this subdivision] 42 Where the payor's income exceeds the income cap, the court shall deter- 43 mine the guideline amount of post-divorce maintenance as follows: 44 (1) the court shall perform the calculations set forth in paragraph c 45 of this subdivision for the income of payor up to and including the 46 income cap; and 47 (2) for income exceeding the cap, the amount of additional maintenance 48 awarded, if any, shall be within the discretion of the court which shall 49 take into consideration any one or more of the factors set forth in 50 subparagraph one of paragraph e of this subdivision; and 51 (3) the court shall set forth the factors it considered and the 52 reasons for its decision in writing or on the record. Such decision, 53 whether in writing or on the record, may not be waived by either party 54 or counsel. 55 e. (1) The court shall order the post-divorce maintenance guideline 56 obligation up to the income cap in accordance with paragraph c of thisA. 7645 12 1 subdivision, unless the court finds that the post-divorce maintenance 2 guideline obligation is unjust or inappropriate, which finding shall be 3 based upon consideration of any one or more of the following factors, 4 and adjusts the post-divorce maintenance guideline obligation according- 5 ly based upon such consideration: 6 (a) the age and health of the parties; 7 (b) the present or future earning capacity of the parties, including a 8 history of limited participation in the workforce; 9 (c) the need of one party to incur education or training expenses; 10 (d) the termination of a child support award before the termination of 11 the maintenance award when the calculation of maintenance was based upon 12 child support being awarded which resulted in a maintenance award lower 13 than it would have been had child support not been awarded; 14 (e) the wasteful dissipation of marital property, including transfers 15 or encumbrances made in contemplation of a matrimonial action without 16 fair consideration; 17 (f) the existence and duration of a pre-marital joint household or a 18 pre-divorce separate household; 19 (g) acts by one party against another that have inhibited or continue 20 to inhibit a party's earning capacity or ability to obtain meaningful 21 employment. Such acts include but are not limited to acts of domestic 22 violence as provided in section four hundred fifty-nine-a of the social 23 services law; 24 (h) the availability and cost of medical insurance for the parties; 25 (i) the care of children or stepchildren, disabled adult children or 26 stepchildren, elderly parents or in-laws provided during the marriage 27 that inhibits a party's earning capacity; 28 (j) the tax consequences to each party; 29 (k) the standard of living of the parties established during the 30 marriage; 31 (l) the reduced or lost earning capacity of the payee as a result of 32 having forgone or delayed education, training, employment or career 33 opportunities during the marriage; 34 (m) the equitable distribution of marital property and the income or 35 imputed income on the assets so distributed; 36 (n) the contributions and services of the payee as a spouse, parent, 37 wage earner and homemaker and to the career or career potential of the 38 other party; and 39 (o) any other factor which the court shall expressly find to be just 40 and proper. 41 (2) Where the court finds that the post-divorce maintenance guideline 42 obligation is unjust or inappropriate and the court adjusts the post-di- 43 vorce maintenance guideline obligation pursuant to this paragraph, the 44 court shall set forth, in a written decision or on the record, the unad- 45 justed post-divorce maintenance guideline obligation, the factors it 46 considered, and the reasons that the court adjusted the post-divorce 47 maintenance obligation. Such decision shall not be waived by either 48 party or counsel. 49 f. The duration of post-divorce maintenance may be determined as 50 follows: 51 (1) The court may determine the duration of post-divorce maintenance 52 in accordance with the following advisory schedule: 53 Length of the marriage Percent of the length of the 54 marriage for which 55 maintenance will be payable 56 0 up to and including 15 years 15% - 30%A. 7645 13 1 More than 15 up to and including 30% - 40% 2 20 years 3 More than 20 years 35% - 50% 4 (2) In determining the duration of post-divorce maintenance, whether 5 or not the court utilizes the advisory schedule, it shall consider the 6 factors listed in subparagraph one of paragraph e of this subdivision 7 and shall set forth, in a written decision or on the record, the factors 8 it considered. Such decision shall not be waived by either party or 9 counsel. Nothing herein shall prevent the court from awarding non-dura- 10 tional maintenance in an appropriate case. 11 (3) Notwithstanding the provisions of subparagraph one of this para- 12 graph, post-divorce maintenance shall terminate upon the death of either 13 party or upon the payee's valid or invalid marriage, or upon modifica- 14 tion pursuant to paragraph b of subdivision nine of this part or section 15 two hundred forty-eight of this article. 16 (4) Notwithstanding the provisions of subparagraph one of this para- 17 graph, when determining duration of post-divorce maintenance, the court 18 shall take into consideration anticipated retirement assets, benefits, 19 and retirement eligibility age of both parties if ascertainable at the 20 time of decision. If not ascertainable at the time of decision, the 21 actual full or partial retirement of the payor with substantial diminu- 22 tion of income shall be a basis for a modification of the award. 23 g. Where either or both parties are unrepresented, the court shall not 24 enter a maintenance order or judgment unless the court informs the 25 unrepresented party or parties of the post-divorce maintenance guideline 26 obligation. 27 h. Nothing contained in this subdivision shall be construed to alter 28 the rights of the parties to voluntarily enter into validly executed 29 agreements or stipulations which deviate from the post-divorce mainte- 30 nance guideline obligation. 31 i. When a payor has defaulted and/or the court makes a finding at the 32 time of trial that it was presented with insufficient evidence to deter- 33 mine income, the court shall order the post-divorce maintenance based 34 upon the needs of the payee or the standard of living of the parties 35 prior to commencement of the divorce action, whichever is greater. Such 36 order may be retroactively modified upward without a showing of change 37 in circumstances upon a showing of substantial newly discovered 38 evidence. 39 j. Post-divorce maintenance may be modified pursuant to paragraph b of 40 subdivision nine of this part. 41 k. In any action or proceeding for modification of an order of mainte- 42 nance or alimony existing prior to the effective date of the chapter of 43 the laws of two thousand fifteen which amended this subdivision, brought 44 pursuant to this article, the guidelines for post-divorce maintenance 45 set forth in this subdivision shall not constitute a change of circum- 46 stances warranting modification of such support order. 47 l. In any action or proceeding for modification where the parties have 48 entered into an agreement providing for maintenance pursuant to subdivi- 49 sion three of this part entered into prior to the effective date of the 50 chapter of the laws of two thousand fifteen which amended this subdivi- 51 sion, brought pursuant to this article, the guidelines for post-divorce 52 maintenance set forth in this subdivision shall not constitute a change 53 of circumstances warranting modification of such agreement. 54 m. In any action or proceeding for modification of an order of mainte- 55 nance or alimony existing prior to the effective date of the chapter of 56 the laws of two thousand fifteen which amended this subdivision, broughtA. 7645 14 1 pursuant to this article, the guidelines for post-divorce maintenance 2 set forth in paragraphs c, d and e of this subdivision shall not apply. 3 n. In any action or proceeding for modification where the parties have 4 entered into an agreement providing for maintenance pursuant to subdivi- 5 sion three of this part entered into prior to the effective date of the 6 chapter of the laws of two thousand fifteen which amended this subdivi- 7 sion, brought pursuant to this article, the guidelines for post-divorce 8 maintenance set forth in paragraphs c, d and e of this subdivision shall 9 not apply. 10 o. 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 paragraph e of this subdivision. 14 § 5. Subparagraph 1 of paragraph b of subdivision 9 of part B of 15 section 236 of the domestic relations law, as amended by chapter 182 of 16 the laws of 2010, is amended to read as follows: 17 (1) Upon application by either party, the court may annul or modify 18 any prior order or judgment made after trial as to maintenance, upon a 19 showing of the [recipient's] payee's inability to be self-supporting or 20 upon a showing of a substantial change in circumstance [or termination21of child support awarded pursuant to section two hundred forty of this22article], including financial hardship or upon actual full or partial 23 retirement of the payor if the retirement results in a substantial 24 change in financial circumstances. Where, after the effective date of 25 this part, [a separation] an agreement remains in force, no modification 26 of [a prior] an order or judgment incorporating the terms of said agree- 27 ment shall be made as to maintenance without a showing of extreme hard- 28 ship on either party, in which event the judgment or order as modified 29 shall supersede the terms of the prior agreement and judgment for such 30 period of time and under such circumstances as the court determines. The 31 court shall not reduce or annul any arrears of maintenance which have 32 been reduced to final judgment pursuant to section two hundred forty- 33 four of this article. No other arrears of maintenance which have accrued 34 prior to the making of such application shall be subject to modification 35 or annulment unless the defaulting party shows good cause for failure to 36 make application for relief from the judgment or order directing such 37 payment prior to the accrual of such arrears and the facts and circum- 38 stances constituting good cause are set forth in a written memorandum of 39 decision. Such modification may increase maintenance nunc pro tunc as of 40 the date of application based on newly discovered evidence. Any retroac- 41 tive amount of maintenance due shall, except as provided for herein, be 42 paid in one sum or periodic sums, as the court directs, taking into 43 account any temporary or partial payments which have been made. The 44 provisions of this subdivision shall not apply to a separation agreement 45 made prior to the effective date of this part. 46 § 6. Section 248 of the domestic relations law, as amended by chapter 47 604 of the laws of 1975, is amended to read as follows: 48 § 248. Modification of judgment or order in action for divorce or 49 annulment. Where an action for divorce or for annulment or for a decla- 50 ration of the nullity of a void marriage is brought by a [husband or51wife] spouse, and a final judgment of divorce or a final judgment 52 annulling the marriage or declaring its nullity has been rendered, the 53 court, by order upon the application of the [husband] payor on notice, 54 and on proof of the marriage of the [wife] payee after such final judg- 55 ment, must modify such final judgment and any orders made with respect 56 thereto by annulling the provisions of such final judgment or orders, orA. 7645 15 1 of both, directing payments of money for the support of the [wife] 2 payee. The court in its discretion upon application of the [husband] 3 payor on notice, upon proof that the [wife] payee is habitually living 4 with another [man] person and holding himself or herself out as [his5wife] the spouse of such other person, although not married to such 6 [man] other person, may modify such final judgment and any orders made 7 with respect thereto by annulling the provisions of such final judgment 8 or orders or of both, directing payment of money for the support of such 9 [wife] payee. 10 § 7. Section 412 of the family court act, as amended by chapter 281 of 11 the laws of 1980, is amended to read as follows: 12 § 412. Married person's duty to support spouse. 1. A married person is 13 chargeable with the support of his or her spouse and, [if possessed of14sufficient means or able to earn such means, may be required to pay for15his or her support a fair and reasonable sum, as] except where the 16 parties have entered into an agreement pursuant to section four hundred 17 twenty-five of this article providing for support, the court [may deter-18mine, having due regard to the circumstances of the respective parties], 19 upon application by a party, shall make its award for spousal support 20 pursuant to the provisions of this part. 21 2. For purposes of this section, the following definitions shall be 22 used: 23 (a) "payor" shall mean the spouse with the higher income. 24 (b) "payee" shall mean the spouse with the lower income. 25 (c) "income" shall mean income as defined in the child support stand- 26 ards act and codified in section two hundred forty of the domestic 27 relations law and section four hundred thirteen of this article without 28 subtracting spousal support actually paid or to be paid to a spouse that 29 is a party to the instant action pursuant to subclause (C) of clause 30 (vii) of subparagraph five of paragraph (b) of subdivision one-b of 31 section two hundred forty of the domestic relations law and subclause 32 (C) of clause (vii) of subparagraph five of paragraph (b) of subdivision 33 one of section four hundred thirteen of this article. 34 (d) "income cap" shall mean up to and including one hundred seventy- 35 five thousand dollars of the payor's annual income; provided, however, 36 beginning January thirty-first, two thousand sixteen and every two years 37 thereafter, the income cap amount shall increase by the sum of the aver- 38 age annual percentage changes in the consumer price index for all urban 39 consumers (CPI-U) as published by the United States department of labor 40 bureau of labor statistics for the prior two years multiplied by the 41 then income cap and then rounded to the nearest one thousand dollars. 42 The office of court administration shall determine and publish the 43 income cap. 44 (e) "guideline amount of spousal support" shall mean the sum derived 45 by the application of subdivision three or four of this section. 46 (f) "self-support reserve" shall mean the self-support reserve as 47 defined in the child support standards act and codified in section two 48 hundred forty of the domestic relations law and section four hundred 49 thirteen of this article. 50 (g) "agreement" shall have the same meaning as provided in subdivision 51 three of part B of section two hundred thirty-six of the domestic 52 relations law. 53 3. Where the payor's income is lower than or equal to the income cap, 54 the court shall determine the guideline amount of spousal support as 55 follows:A. 7645 16 1 (a) Where child support will be paid for children of the marriage and 2 where the payor as defined in this section is also the non-custodial 3 parent pursuant to the child support standards act: 4 (1) the court shall subtract twenty-five percent of the payee's income 5 from twenty percent of the payor's income. 6 (2) the court shall then multiply the sum of the payor's income and 7 the payee's income by forty percent. 8 (3) the court shall subtract the payee's income from the amount 9 derived from subparagraph two of this paragraph. 10 (4) the court shall determine the lower of the two amounts derived by 11 subparagraphs one and three of this paragraph. 12 (5) the guideline amount of spousal support shall be the amount deter- 13 mined by subparagraph four of this paragraph except that, if the amount 14 determined by subparagraph four of this paragraph is less than or equal 15 to zero, the guideline amount of spousal support shall be zero dollars. 16 (6) spousal support shall be calculated prior to child support because 17 the amount of spousal support shall be subtracted from the payor's 18 income and added to the payee's income as part of the calculation of the 19 child support obligation. 20 (b) Where child support will not be paid for children of the marriage, 21 or where child support will be paid for children of the marriage but the 22 payor as defined in this section is the custodial parent pursuant to the 23 child support standards act: 24 (1) the court shall subtract twenty percent of the payee's income from 25 thirty percent of the payor's income. 26 (2) the court shall then multiply the sum of the payor's income and 27 the payee's income by forty percent. 28 (3) the court shall subtract the payee's income from the amount 29 derived from subparagraph two of this paragraph. 30 (4) the court shall determine the lower of amounts derived by subpara- 31 graphs one and three of this paragraph. 32 (5) the guideline amount of spousal support shall be the amount deter- 33 mined by subparagraph four of this paragraph except that, if the amount 34 determined by subparagraph four of this paragraph is less than or equal 35 to zero, the guideline amount of spousal support shall be zero dollars. 36 (6) if child support will be paid for children of the marriage but the 37 payor as defined in this section is the custodial parent pursuant to the 38 child support standards act, spousal support shall be calculated prior 39 to child support because the amount of spousal support shall be 40 subtracted from the payor's income and added to the payee's income as 41 part of the calculation of the child support obligation. 42 4. Where the payor's income exceeds the income cap, the court shall 43 determine the guideline amount of spousal support as follows: 44 (a) the court shall perform the calculations set forth in subdivision 45 three of this section for the income of the payor up to and including 46 the income cap; and 47 (b) for income exceeding the cap, the amount of additional spousal 48 support awarded, if any, shall be within the discretion of the court 49 which shall take into consideration any one or more of the factors set 50 forth in paragraph (a) of subdivision six of this section; and 51 (c) the court shall set forth the factors it considered and the 52 reasons for its decision in writing or on the record. Such decision, 53 whether in writing or on the record, may not be waived by either party 54 or counsel. 55 5. Notwithstanding the provisions of this section, where the guideline 56 amount of spousal support would reduce the payor's income below theA. 7645 17 1 self-support reserve for a single person, the guideline amount of spous- 2 al support shall be the difference between the payor's income and the 3 self-support reserve. If the payor's income is below the self-support 4 reserve, there shall be a rebuttable presumption that no spousal support 5 is awarded. 6 6. (a) The court shall order the guideline amount of spousal support 7 up to the cap in accordance with subdivision three of this section, 8 unless the court finds that the guideline amount of spousal support is 9 unjust or inappropriate, which finding shall be based upon consideration 10 of any one or more of the following factors, and adjusts the guideline 11 amount of spousal support accordingly based upon consideration of the 12 following factors: 13 (1) the age and health of the parties; 14 (2) the present or future earning capacity of the parties, including a 15 history of limited participation in the workforce; 16 (3) the need of one party to incur education or training expenses; 17 (4) the termination of a child support award during the pendency of 18 the spousal support award when the calculation of spousal support was 19 based upon child support being awarded which resulted in a spousal 20 support award lower than it would have been had child support not been 21 awarded; 22 (5) the wasteful dissipation of marital property, including transfers 23 or encumbrances made in contemplation of a support proceeding without 24 fair consideration; 25 (6) the existence and duration of a pre-marital joint household or a 26 pre-support proceedings separate household; 27 (7) 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 (8) the availability and cost of medical insurance for the parties; 33 (9) 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 (10) the tax consequences to each party; 37 (11) the standard of living of the parties established during the 38 marriage; 39 (12) the reduced or lost earning capacity of the payee as a result of 40 having forgone or delayed education, training, employment or career 41 opportunities during the marriage; 42 (13) the contributions and services of the payee as a spouse, parent, 43 wage earner and homemaker and to the career or career potential of the 44 other party; 45 (14) any other factor which the court shall expressly find to be just 46 and proper. 47 (b) Where the court finds that the guideline amount of spousal support 48 is unjust or inappropriate and the court adjusts the guideline amount of 49 spousal support pursuant to this subdivision, the court shall set forth, 50 in a written decision or on the record, the guideline amount of spousal 51 support, the factors it considered, and the reasons that the court 52 adjusted the guideline amount of spousal support. Such decision, whether 53 in writing or on the record, shall not be waived by either party or 54 counsel.A. 7645 18 1 (c) Where either or both parties are unrepresented, the court shall 2 not enter a spousal support order unless the court informs the unrepre- 3 sented party or parties of the guideline amount of spousal support. 4 7. When a party has defaulted and/or the court makes a finding at the 5 time of trial that it was presented with insufficient evidence to deter- 6 mine income, the court shall order the spousal support award based upon 7 the needs of the payee or the standard of living of the parties prior to 8 commencement of the spousal support proceeding, whichever is greater. 9 Such order may be retroactively modified upward without a showing of 10 change in circumstances upon a showing of substantial newly discovered 11 evidence. 12 8. In any action or proceeding for modification of an order of spousal 13 support existing prior to the effective date of the chapter of the laws 14 of two thousand fifteen which amended this section, brought pursuant to 15 this article, the spousal support guidelines set forth in this section 16 shall not constitute a change of circumstances warranting modification 17 of such spousal support order. 18 9. In any action or proceeding for modification where spousal support 19 or maintenance was established in a written agreement providing for 20 spousal support made pursuant to section four hundred twenty-five of 21 this article or made pursuant to subdivision three of part B of section 22 two hundred thirty-six of the domestic relations law entered into prior 23 to the effective date of the chapter of the laws of two thousand fifteen 24 which amended this section, brought pursuant to this article, the spous- 25 al support guidelines set forth in this section shall not constitute a 26 change of circumstances warranting modification of such spousal support 27 order. 28 10. The court may modify an order of spousal support upon a showing of 29 a substantial change in circumstances. Unless so modified, any order for 30 spousal support issued pursuant to this section shall continue until the 31 earliest to occur of the following: 32 (a) a written stipulation or agreement between the parties; 33 (b) an oral stipulation or agreement between the parties entered into 34 on the record in open court; 35 (c) issuance of a judgment of divorce or other order in a matrimonial 36 proceeding; 37 (d) the death of either party. 38 § 8. This act shall take effect on the one hundred twentieth day after 39 it shall have become a law and shall apply to matrimonial actions and 40 family court actions for spousal support commenced on or after such 41 effective date; provided however that section three of this act shall 42 take effect on the thirtieth day after it shall have become a law and 43 shall apply to matrimonial actions commenced on or after such effective 44 date. Nothing in this act shall be deemed to affect the validity of any 45 agreement made pursuant to subdivision 3 of part B of section 236 of the 46 domestic relations law or section 425 of the family court act prior to 47 the effective date of this act.