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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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|---|---|
| Sep 25, 2015 |
signed chap.269 |
| Sep 15, 2015 |
delivered to governor |
| Jun 24, 2015 |
returned to assembly passed senate substituted for s5678 |
| Jun 24, 2015 |
substituted by a7645 |
| Jun 08, 2015 |
advanced to third reading |
| Jun 03, 2015 |
2nd report cal. |
| Jun 02, 2015 |
1st report cal.1228 |
| May 27, 2015 |
referred to judiciary |
Senate Bill S5678
Signed By Governor2015-2016 Legislative Session
Relates to the duration and amount of maintenance and of spousal support
download bill text pdfSponsored By
(R, C, IP) Senate District
Archive: Last Bill Status Via A7645 - Signed by Governor
- Introduced
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- In Committee Assembly
- In Committee Senate
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- On Floor Calendar Assembly
- On Floor Calendar Senate
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- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Votes
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Floor Vote: Jun 24, 2015
aye (60)- Amedore
- Avella
- Bonacic
- Boyle
- Breslin
- Carlucci
- Comrie
- Croci
- DeFrancisco
- Diaz
- Dilan
- Espaillat
- Farley
- Felder
- Flanagan
- Funke
- Gallivan
- Gianaris
- Golden
- Griffo
- Hamilton
- Hannon
- Hassell-Thompson
- Hoylman-Sigal
- Kennedy
- Klein
- Krueger
- LaValle
- Lanza
- Larkin
- Latimer
- Little
- Marcellino
- Marchione
- Martins
- Montgomery
- Murphy
- Nozzolio
- O'Mara
- Ortt
- Panepinto
- Parker
- Peralta
- Perkins
- Ranzenhofer
- Ritchie
- Rivera
- Robach
- Sanders Jr.
- Savino
- Serino
- Serrano
- Seward
- Skelos
- Squadron
- Stavisky
- Stewart-Cousins
- Valesky
- Venditto
- Young
absent (1)excused (2)
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Jun 2, 2015 - Judiciary Committee Vote
S567818Aye1Nay2Aye with Reservations0Absent1Excused0Abstained -
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co-Sponsors
(D, WF) Senate District
2015-S5678 (ACTIVE) - Details
- See Assembly Version of this Bill:
- A7645
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§236 & 248, Dom Rel L; amd §412, Fam Ct Act
2015-S5678 (ACTIVE) - Sponsor Memo
BILL NUMBER:S5678
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
Matrimonial Practice Advisory and Rules Committee.
This measure would enact new guidelines for both temporary and
post-divorce 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 Maintenance Standards Coalition, the Women's
Bar Association of the State of New York, and the New York Chapter of
the American Academy of Matrimonial Lawyers.* This measure is the
result of their collective efforts. It recognizes the need to address
the concerns of lower income communities, domestic violence
communities, families with middle class economics and families with
exceptional wealth. It was approved by the Advisory 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
maintenance 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-divorce 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-custodial parent for child support purposes: (i) subtract 25% of
the maintenance 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
maintenance payor is the custodial parent for child support purposes:
(i) subtract 20% of the maintenance payee's income from 30% 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
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 maintenance.
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
distributed (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
eligibility 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 decision. 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
showing of a substantial change in circumstances. Unless so modified,
spousal 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
matrimonial 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 § 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
guidelines 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 separately on a worksheet, and then input the
result into the calculator.** Our Advisory Committee recommends that
the new calculator perform the calculation of Child Support Standards
Act ("CSSA") income for the user.*** 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 temporary 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. shtml# with respect to
implementation of the current temporary maintenance guidelines 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 obligations, thus justifying a shorter startup period.
This measure would have no fiscal impact upon the State.
Legislative History:
None. New proposal.
* 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 ** In Family Court, the calculations
are performed automatically in the UCMS system which is not used in
Supreme Court, *** 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
2015-S5678 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
5678
2015-2016 Regular Sessions
I N S E N A T E
May 27, 2015
___________
Introduced by Sen. BONACIC -- (at request of the Office of Court Admin-
istration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Judiciary
AN ACT to amend the domestic relations law and the family court act, in
relation to 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:
Section 1. Paragraph a of subdivision 1 of part B of section 236 of
the domestic relations law, as amended by chapter 371 of the laws of
2010, is amended to read as follows:
a. The term "maintenance" shall mean payments provided for in a valid
agreement between the parties or awarded by the court in accordance with
the provisions of subdivisions five-a and six of this part, to be paid
at fixed intervals for a definite or indefinite period of time, but an
award of maintenance shall terminate upon the death of either party or
upon the [recipient's] PAYEE'S valid or invalid marriage, or upon
modification pursuant to paragraph [(b)] B of subdivision nine of
[section two hundred thirty-six of] this part or section two hundred
forty-eight of this chapter.
S 2. Subparagraph 7 of paragraph d of subdivision 5 of part B of
section 236 of the domestic relations law, as amended by chapter 281 of
the laws of 1980 and as renumbered by chapter 229 of the laws of 2009,
is amended to read as follows:
(7) any equitable claim to, interest in, or direct or indirect
contribution made to the acquisition of such marital property by the
party not having title, including joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and homemak-
er, and to the career or career potential of the other party. THE COURT
SHALL NOT CONSIDER AS MARITAL PROPERTY SUBJECT TO DISTRIBUTION THE VALUE
OF A SPOUSE'S ENHANCED EARNING CAPACITY ARISING FROM A LICENSE, DEGREE,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10788-02-5
S. 5678 2
CELEBRITY GOODWILL, OR CAREER ENHANCEMENT. HOWEVER, IN ARRIVING AT AN
EQUITABLE DIVISION OF MARITAL PROPERTY, THE COURT SHALL CONSIDER THE
DIRECT OR INDIRECT CONTRIBUTIONS TO THE DEVELOPMENT DURING THE MARRIAGE
OF THE ENHANCED EARNING CAPACITY OF THE OTHER SPOUSE;
S 3. Subdivision 5-a of part B of section 236 of the domestic
relations law, as added by chapter 371 of the laws of 2010, is amended
to read as follows:
5-a. Temporary maintenance awards. a. Except where the parties have
entered into an agreement [pursuant to subdivision three of this part]
providing for maintenance PURSUANT TO SUBDIVISION THREE OF THIS PART, in
any matrimonial action the court, UPON APPLICATION BY A PARTY, shall
make its award for temporary maintenance pursuant to the provisions of
this subdivision.
b. For purposes of this subdivision, the following definitions shall
be used:
(1) "Payor" shall mean the spouse with the higher income.
(2) "Payee" shall mean the spouse with the lower income.
(3) "Length of marriage" shall mean the period from the date of
marriage until the date of commencement of action.
(4) "Income" shall mean[:
(a)] income as defined in the child support standards act and codified
in section two hundred forty of this article and section four hundred
thirteen of the family court act[; and
(b) income from income producing property to be distributed pursuant
to subdivision five of this part] WITHOUT SUBTRACTING ALIMONY OR MAINTE-
NANCE ACTUALLY PAID OR TO BE PAID TO A SPOUSE THAT IS A PARTY TO THE
INSTANT ACTION PURSUANT TO SUBCLAUSE (C) OF CLAUSE (VII) OF SUBPARAGRAPH
FIVE OF PARAGRAPH (B) OF SUBDIVISION ONE-B OF SECTION TWO HUNDRED FORTY
OF THIS ARTICLE AND SUBCLAUSE (C) OF CLAUSE (VII) OF SUBPARAGRAPH FIVE
OF PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION FOUR HUNDRED THIRTEEN OF
THE FAMILY COURT ACT AND WITHOUT SUBTRACTING SPOUSAL SUPPORT PAID PURSU-
ANT TO SECTION FOUR HUNDRED TWELVE OF SUCH ACT.
(5) "Income cap" shall mean up to and including [five hundred] ONE
HUNDRED SEVENTY-FIVE thousand dollars of the payor's annual income;
provided, however, beginning January thirty-first, two thousand [twelve]
SIXTEEN and every two years thereafter, the [payor's annual] income CAP
amount shall increase by the [product] SUM of the average annual
percentage changes in the consumer price index for all urban consumers
(CPI-U) as published by the United States department of labor bureau of
labor statistics for the PRIOR two [year period] YEARS MULTIPLIED BY THE
THEN INCOME CAP AND THEN rounded to the nearest one thousand dollars.
The office of court administration shall determine and publish the
income cap.
(6) "Guideline amount of temporary maintenance" shall mean the [sum]
DOLLAR AMOUNT derived by the application of paragraph c OR D of this
subdivision.
(7) ["Guideline duration" shall mean the durational period determined
by the application of paragraph d of this subdivision] "SELF-SUPPORT
RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS DEFINED IN THE CHILD
SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO HUNDRED FORTY OF THIS
ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE FAMILY COURT ACT.
(8) ["Presumptive award" shall mean the guideline amount of the tempo-
rary maintenance award for the guideline duration prior to the court's
application of any adjustment factors as provided in subparagraph one of
paragraph e of this subdivision.
S. 5678 3
(9) "Self-support reserve" shall mean the self-support reserve as
defined in the child support standards act and codified in section two
hundred forty of this article and section four hundred thirteen of the
family court act] "AGREEMENT" SHALL HAVE THE SAME MEANING AS PROVIDED IN
SUBDIVISION THREE OF THIS PART.
c. [The] WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME
CAP, THE court shall determine the guideline amount of temporary mainte-
nance [in accordance with the provisions of this paragraph after deter-
mining the income of the parties] AS FOLLOWS:
(1) Where [the payor's income is up to and including the income cap]
CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE AND WHERE THE
PAYOR AS DEFINED IN THIS SUBDIVISION IS ALSO THE NON-CUSTODIAL PARENT
PURSUANT TO THE CHILD SUPPORT STANDARDS ACT:
(a) the court shall subtract [twenty] TWENTY-FIVE percent of the
PAYEE'S income [of the payee] from [thirty] TWENTY percent of the
PAYOR'S income [up to the income cap of the payor].
(b) the court shall then multiply the sum of the payor's income [up to
and including the income cap] and [all of] the payee's income by forty
percent.
(c) the court shall subtract the PAYEE'S income [of the payee] from
the amount derived from clause (b) of this subparagraph.
(d) the COURT SHALL DETERMINE THE LOWER OF THE TWO AMOUNTS DERIVED BY
CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH.
(E) THE guideline amount of temporary maintenance shall be the [lower
of the amounts] AMOUNT determined by [clauses (a) and (c) of this
subparagraph;] CLAUSE (D) OF THIS SUBPARAGRAPH EXCEPT THAT, if the
amount determined by clause [(c) of this subparagraph] (D) OF THIS
SUBPARAGRAPH is less than or equal to zero, the guideline amount OF
TEMPORARY MAINTENANCE shall be zero dollars.
(F) TEMPORARY MAINTENANCE SHALL BE CALCULATED PRIOR TO CHILD SUPPORT
BECAUSE THE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE SUBTRACTED FROM THE
PAYOR'S INCOME AND ADDED TO THE PAYEE'S INCOME AS PART OF THE CALCU-
LATION OF THE CHILD SUPPORT OBLIGATION.
(2) Where [the income of the payor exceeds the income cap:
(a) the court shall determine the guideline amount of temporary main-
tenance for that portion of the payor's income that is up to and includ-
ing the income cap according to subparagraph one of this paragraph, and,
for the payor's income in excess of the income cap, the court shall
determine any additional guideline amount of temporary maintenance
through consideration of the following factors:
(i) the length of the marriage;
(ii) the substantial differences in the incomes of the parties;
(iii) the standard of living of the parties established during the
marriage;
(iv) the age and health of the parties;
(v) the present and future earning capacity of the parties;
(vi) the need of one party to incur education or training expenses;
(vii) the wasteful dissipation of marital property;
(viii) the transfer or encumbrance made in contemplation of a matrimo-
nial action without fair consideration;
(ix) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(x) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
S. 5678 4
violence as provided in section four hundred fifty-nine-a of the social
services law;
(xi) the availability and cost of medical insurance for the parties;
(xii) the care of the children or stepchildren, disabled adult chil-
dren or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity or ability to obtain
meaningful employment;
(xiii) the inability of one party to obtain meaningful employment due
to age or absence from the workforce;
(xiv) the need to pay for exceptional additional expenses for the
child or children, including, but not limited to, schooling, day care
and medical treatment;
(xv) the tax consequences to each party;
(xvi) marital property subject to distribution pursuant to subdivision
five of this part;
(xvii) the reduced or lost earning capacity of the party seeking
temporary maintenance as a result of having foregone or delayed educa-
tion, training, employment or career opportunities during the marriage;
(xviii) the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and
(xix) any other factor which the court shall expressly find to be just
and proper.
(b) In any decision made pursuant to this subparagraph, the court
shall set forth the factors it considered and the reasons for its deci-
sion. Such written order may not be waived by either party or counsel.]
CHILD SUPPORT WILL NOT BE PAID FOR CHILDREN OF THE MARRIAGE, OR WHERE
CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE PAYOR AS
DEFINED IN THIS SUBDIVISION IS THE CUSTODIAL PARENT PURSUANT TO THE
CHILD SUPPORT STANDARDS ACT:
(A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
(B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(C) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
(D) THE COURT SHALL DETERMINE THE LOWER OF THE TWO AMOUNTS DERIVED BY
CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH.
(E) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE AMOUNT
DETERMINED BY CLAUSE (D) OF THIS SUBPARAGRAPH EXCEPT THAT, IF THE AMOUNT
DETERMINED BY CLAUSE (D) OF THIS SUBPARAGRAPH IS LESS THAN OR EQUAL TO
ZERO, THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE ZERO
DOLLARS.
(F) IF CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE
PAYOR AS DEFINED IN THIS SUBDIVISION IS THE CUSTODIAL PARENT PURSUANT TO
THE CHILD SUPPORT STANDARDS ACT, TEMPORARY MAINTENANCE SHALL BE CALCU-
LATED PRIOR TO CHILD SUPPORT BECAUSE THE AMOUNT OF TEMPORARY MAINTENANCE
SHALL BE SUBTRACTED FROM THE PAYOR'S INCOME PURSUANT TO THIS SUBDIVISION
AND ADDED TO THE PAYEE'S INCOME PURSUANT TO THIS SUBDIVISION AS PART OF
THE CALCULATION OF THE CHILD SUPPORT OBLIGATION.
[(3) Notwithstanding the provisions of this paragraph, where the
guideline amount of temporary maintenance would reduce the payor's
income below the self-support reserve for a single person, the presump-
tive amount of the guideline amount of temporary maintenance shall be
the difference between the payor's income and the self-support reserve.
S. 5678 5
If the payor's income is below the self-support reserve, there is a
rebuttable presumption that no temporary maintenance is awarded.]
d. [The] WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE court
shall determine the guideline [duration] AMOUNT of temporary maintenance
[by considering the length of the marriage. Temporary maintenance shall
terminate upon the issuance of the final award of maintenance or the
death of either party, whichever occurs first] AS FOLLOWS:
(1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPH C
OF THIS SUBDIVISION FOR THE INCOME OF THE PAYOR UP TO AND INCLUDING THE
INCOME CAP; AND
(2) FOR INCOME EXCEEDING THE CAP, THE AMOUNT OF ADDITIONAL MAINTENANCE
AWARDED, IF ANY, SHALL BE WITHIN THE DISCRETION OF THE COURT WHICH SHALL
TAKE INTO CONSIDERATION ANY ONE OR MORE OF THE FACTORS SET FORTH IN
SUBPARAGRAPH ONE OF PARAGRAPH H OF THIS SUBDIVISION; AND
(3) THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED AND THE
REASONS FOR ITS DECISION IN WRITING OR ON THE RECORD. SUCH DECISION,
WHETHER IN WRITING OR ON THE RECORD, MAY NOT BE WAIVED BY EITHER PARTY
OR COUNSEL.
e. [(1) The court shall order the presumptive award of temporary main-
tenance in accordance with paragraphs c and d of this subdivision,
unless the court finds that the presumptive award is unjust or inappro-
priate and adjusts the presumptive award of temporary maintenance
accordingly based upon consideration of the following factors:
(a) the standard of living of the parties established during the
marriage;
(b) the age and health of the parties;
(c) the earning capacity of the parties;
(d) the need of one party to incur education or training expenses;
(e) the wasteful dissipation of marital property;
(f) the transfer or encumbrance made in contemplation of a matrimonial
action without fair consideration;
(g) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(h) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(i) the availability and cost of medical insurance for the parties;
(j) the care of the children or stepchildren, disabled adult children
or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity or ability to obtain
meaningful employment;
(k) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
(l) the need to pay for exceptional additional expenses for the child
or children, including, but not limited to, schooling, day care and
medical treatment;
(m) the tax consequences to each party;
(n) marital property subject to distribution pursuant to subdivision
five of this part;
(o) the reduced or lost earning capacity of the party seeking tempo-
rary maintenance as a result of having foregone or delayed education,
training, employment or career opportunities during the marriage;
S. 5678 6
(p) the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and
(q) any other factor which the court shall expressly find to be just
and proper.
(2) Where the court finds that the presumptive award of temporary
maintenance is unjust or inappropriate and the court adjusts the
presumptive award of temporary maintenance pursuant to this paragraph,
the court shall set forth, in a written order, the amount of the unad-
justed presumptive award of temporary maintenance, the factors it
considered, and the reasons that the court adjusted the presumptive
award of temporary maintenance. Such written order shall not be waived
by either party or counsel.
(3) Where either or both parties are unrepresented, the court shall
not enter a temporary maintenance order unless the unrepresented party
or parties have been informed of the presumptive award of temporary
maintenance] NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, WHERE
THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE WOULD REDUCE THE PAYOR'S
INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE DIFFERENCE BETWEEN THE
PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS
BELOW THE SELF-SUPPORT RESERVE, THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT NO TEMPORARY MAINTENANCE IS AWARDED.
f. [A validly executed agreement or stipulation voluntarily entered
into between the parties in an action commenced after the effective date
of this subdivision presented to the court for incorporation in an order
shall include a provision stating that the parties have been advised of
the provisions of this subdivision, and that the presumptive award
provided for therein results in the correct amount of temporary mainte-
nance. In the event that such agreement or stipulation deviates from the
presumptive award of temporary maintenance, the agreement or stipulation
must specify the amount that such presumptive award of temporary mainte-
nance would have been and the reason or reasons that such agreement or
stipulation does not provide for payment of that amount. Such provision
may not be waived by either party or counsel. Nothing contained in this
subdivision shall be construed to alter the rights of the parties to
voluntarily enter into validly executed agreements or stipulations which
deviate from the presumptive award of temporary maintenance provided
such agreements or stipulations comply with the provisions of this
subdivision.] The court shall[, however, retain discretion with respect
to temporary, and post-divorce maintenance awards pursuant to this
section. Any court order incorporating a validly executed agreement or
stipulation which deviates from the presumptive award of temporary main-
tenance shall set forth the court's reasons for such deviation] DETER-
MINE THE DURATION OF TEMPORARY MAINTENANCE BY CONSIDERING THE LENGTH OF
THE MARRIAGE.
g. [When a party has defaulted and/or the court is otherwise presented
with insufficient evidence to determine gross income, the court shall
order the temporary maintenance award based upon the needs of the payee
or the standard of living of the parties prior to commencement of the
divorce action, whichever is greater. Such order may be retroactively
modified upward without a showing of change in circumstances upon a
showing of newly discovered or obtained evidence.] TEMPORARY MAINTENANCE
SHALL TERMINATE NO LATER THAN THE ISSUANCE OF THE JUDGMENT OF DIVORCE OR
THE DEATH OF EITHER PARTY, WHICHEVER OCCURS FIRST.
S. 5678 7
h. [In any action or proceeding for modification of an order of main-
tenance or alimony existing prior to the effective date of this subdivi-
sion, brought pursuant to this article, the temporary maintenance guide-
lines set forth in this subdivision shall not constitute a change of
circumstances warranting modification of such support order] (1) THE
COURT SHALL ORDER THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE UP TO
THE INCOME CAP IN ACCORDANCE WITH PARAGRAPH C OF THIS SUBDIVISION,
UNLESS THE COURT FINDS THAT THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
NANCE IS UNJUST OR INAPPROPRIATE, WHICH FINDING SHALL BE BASED UPON
CONSIDERATION OF ANY ONE OR MORE OF THE FOLLOWING FACTORS, AND ADJUSTS
THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE ACCORDINGLY BASED UPON
SUCH CONSIDERATION:
(A) THE AGE AND HEALTH OF THE PARTIES;
(B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING A
HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
(C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
(D) THE TERMINATION OF A CHILD SUPPORT AWARD DURING THE PENDENCY OF
THE TEMPORARY MAINTENANCE AWARD WHEN THE CALCULATION OF TEMPORARY MAIN-
TENANCE WAS BASED UPON CHILD SUPPORT BEING AWARDED AND WHICH RESULTED IN
A MAINTENANCE AWARD LOWER THAN IT WOULD HAVE BEEN HAD CHILD SUPPORT NOT
BEEN AWARDED;
(E) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES MADE IN CONTEMPLATION OF A MATRIMONIAL ACTION WITHOUT
FAIR CONSIDERATION;
(F) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
(G) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
(H) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
(I) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
(J) THE TAX CONSEQUENCES TO EACH PARTY;
(K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
(L) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
HAVING FORGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE; AND
(M) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
(2) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF TEMPORARY MAIN-
TENANCE IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE GUIDELINE
AMOUNT OF TEMPORARY MAINTENANCE PURSUANT TO THIS PARAGRAPH, THE COURT
SHALL SET FORTH, IN A WRITTEN DECISION OR ON THE RECORD, THE GUIDELINE
AMOUNT OF TEMPORARY MAINTENANCE, THE FACTORS IT CONSIDERED, AND THE
REASONS THAT THE COURT ADJUSTED THE GUIDELINE AMOUNT OF TEMPORARY MAIN-
TENANCE. SUCH DECISION, WHETHER IN WRITING OR ON THE RECORD, SHALL NOT
BE WAIVED BY EITHER PARTY OR COUNSEL.
(3) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL
NOT ENTER A TEMPORARY MAINTENANCE ORDER UNLESS THE COURT INFORMS THE
UNREPRESENTED PARTY OR PARTIES OF THE GUIDELINE AMOUNT OF TEMPORARY
MAINTENANCE.
S. 5678 8
i. [In any decision made pursuant to] NOTHING CONTAINED IN this subdi-
vision [the court] shall[, where appropriate, consider the effect of a
barrier to remarriage, as defined in subdivision six of section two
hundred fifty-three of this article, on the factors enumerated in this
subdivision] BE CONSTRUED TO ALTER THE RIGHTS OF THE PARTIES TO VOLUN-
TARILY ENTER INTO AGREEMENTS OR STIPULATIONS AS DEFINED IN SUBDIVISION
THREE OF THIS PART WHICH DEVIATE FROM THE PRESUMPTIVE AWARD OF TEMPORARY
MAINTENANCE.
J. WHEN A PAYOR HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER
THE TEMPORARY MAINTENANCE AWARD BASED UPON THE NEEDS OF THE PAYEE OR THE
STANDARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE DIVORCE
ACTION, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROACTIVELY MODIFIED
UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON A SHOWING OF
NEWLY DISCOVERED EVIDENCE.
K. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVI-
SION, BROUGHT PURSUANT TO THIS ARTICLE, THE TEMPORARY MAINTENANCE GUIDE-
LINES SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF
CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION WHERE THE PARTIES HAVE
ENTERED INTO AN AGREEMENT PROVIDING FOR MAINTENANCE PURSUANT TO SUBDIVI-
SION THREE OF THIS PART ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF THIS
SUBDIVISION, BROUGHT PURSUANT TO THIS ARTICLE, THE TEMPORARY MAINTENANCE
GUIDELINES SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE
OF CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
M. IN DETERMINING TEMPORARY MAINTENANCE, THE COURT SHALL CONSIDER AND
ALLOCATE, WHERE APPROPRIATE, THE RESPONSIBILITIES OF THE RESPECTIVE
SPOUSES FOR THE FAMILY'S EXPENSES DURING THE PENDENCY OF THE PROCEEDING.
N. THE TEMPORARY MAINTENANCE ORDER SHALL NOT PREJUDICE THE RIGHTS OF
EITHER PARTY REGARDING A POST-DIVORCE MAINTENANCE AWARD.
S 4. Subdivision 6 of part B of section 236 of the domestic relations
law, as amended by chapter 371 of the laws of 2010, is amended to read
as follows:
6. Post-divorce maintenance awards. a. Except where the parties have
entered into an agreement pursuant to subdivision three of this part
providing for maintenance, in any matrimonial action, the court [may
order], UPON APPLICATION BY A PARTY, SHALL MAKE ITS AWARD FOR POST-DI-
VORCE maintenance [in such amount as justice requires, having regard for
the standard of living of the parties established during the marriage,
whether the party in whose favor maintenance is granted lacks sufficient
property and income to provide for his or her reasonable needs and
whether the other party has sufficient property or income to provide for
the reasonable needs of the other and the circumstances of the case and
of the respective parties. Such order shall be effective as of the date
of the application therefor, and any retroactive amount of maintenance
due shall be paid in one sum or periodic sums, as the court shall
direct, taking into account any amount of temporary maintenance which
has been paid. In determining the amount and duration of maintenance the
court shall consider:
(1) the income and property of the respective parties including mari-
tal property distributed pursuant to subdivision five of this part;
(2) the length of the marriage;
(3) the age and health of both parties;
(4) the present and future earning capacity of both parties;
(5) the need of one party to incur education or training expenses;
S. 5678 9
(6) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(7) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(8) the ability of the party seeking maintenance to become self-sup-
porting and, if applicable, the period of time and training necessary
therefor;
(9) reduced or lost lifetime earning capacity of the party seeking
maintenance as a result of having foregone or delayed education, train-
ing, employment, or career opportunities during the marriage;
(10) the presence of children of the marriage in the respective homes
of the parties;
(11) the care of the children or stepchildren, disabled adult children
or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity;
(12) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
(13) the need to pay for exceptional additional expenses for the
child/children, including but not limited to, schooling, day care and
medical treatment;
(14) the tax consequences to each party;
(15) the equitable distribution of marital property;
(16) contributions and services of the party seeking maintenance as a
spouse, parent, wage earner and homemaker, and to the career or career
potential of the other party;
(17) the wasteful dissipation of marital property by either spouse;
(18) the transfer or encumbrance made in contemplation of a matrimoni-
al action without fair consideration;
(19) the loss of health insurance benefits upon dissolution of the
marriage, and the availability and cost of medical insurance for the
parties; and
(20) any other factor which the court shall expressly find to be just
and proper] PURSUANT TO THE PROVISIONS OF THIS SUBDIVISION.
b. [In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel] FOR PURPOSES OF THIS
SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL BE USED:
(1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
(2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
(3) "INCOME" SHALL MEAN:
(A) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
THIRTEEN OF THE FAMILY COURT ACT, WITHOUT SUBTRACTING ALIMONY OR MAINTE-
NANCE ACTUALLY PAID OR TO BE PAID TO A SPOUSE THAT IS A PARTY TO THE
INSTANT ACTION PURSUANT TO SUBCLAUSE (C) OF CLAUSE (VII) OF SUBPARAGRAPH
FIVE OF PARAGRAPH (B) OF SUBDIVISION ONE-B OF SECTION TWO HUNDRED FORTY
OF THIS ARTICLE AND SUBCLAUSE (C) OF CLAUSE (VII) OF SUBPARAGRAPH FIVE
OF PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION FOUR HUNDRED THIRTEEN OF
THE FAMILY COURT ACT AND WITHOUT SUBTRACTING SPOUSAL SUPPORT PAID PURSU-
ANT TO SECTION FOUR HUNDRED TWELVE OF SUCH ACT; AND
(B) INCOME FROM INCOME-PRODUCING PROPERTY DISTRIBUTED OR TO BE
DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
S. 5678 10
(4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING ONE HUNDRED
SEVENTY-FIVE THOUSAND DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED,
HOWEVER, BEGINNING JANUARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY
TWO YEARS THEREAFTER, THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF
THE AVERAGE ANNUAL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR
ALL URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT
OF LABOR BUREAU OF LABOR STATISTICS FOR THE PRIOR TWO YEARS MULTIPLIED
BY THE THEN INCOME CAP AND THEN ROUNDED TO THE NEAREST ONE THOUSAND
DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND PUBLISH
THE INCOME CAP.
(5) "GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
DOLLAR AMOUNT DERIVED BY THE APPLICATION OF PARAGRAPH C OR D OF THIS
SUBDIVISION.
(6) "GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
DURATIONAL PERIOD DETERMINED BY THE APPLICATION OF PARAGRAPH F OF THIS
SUBDIVISION.
(7) "POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION" SHALL MEAN THE
GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE DURATION
OF POST-DIVORCE MAINTENANCE.
(8) "LENGTH OF MARRIAGE" SHALL MEAN THE PERIOD FROM THE DATE OF
MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF THE ACTION.
(9) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS
DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
FAMILY COURT ACT.
(10) "AGREEMENT" SHALL HAVE THE SAME MEANING AS PROVIDED IN SUBDIVI-
SION THREE OF THIS PART.
c. [The court may award permanent maintenance, but an award of mainte-
nance shall terminate upon the death of either party or upon the recipi-
ent's valid or invalid marriage, or upon modification pursuant to para-
graph b of subdivision nine of this part or section two hundred
forty-eight of this chapter] WHERE THE PAYOR'S INCOME IS LOWER THAN OR
EQUAL TO THE INCOME CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT
OF POST-DIVORCE MAINTENANCE AS FOLLOWS:
(1) WHERE CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE AND
WHERE THE PAYOR AS DEFINED IN THIS SUBDIVISION IS ALSO THE NON-CUSTODIAL
PARENT PURSUANT TO THE CHILD SUPPORT STANDARDS ACT:
(A) THE COURT SHALL SUBTRACT TWENTY-FIVE PERCENT OF THE PAYEE'S INCOME
FROM TWENTY PERCENT OF THE PAYOR'S INCOME.
(B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(C) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
(D) THE COURT SHALL DETERMINE THE LOWER OF THE TWO AMOUNTS DERIVED BY
CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH.
(E) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE
AMOUNT DETERMINED BY CLAUSE (D) OF THIS SUBPARAGRAPH EXCEPT THAT, IF THE
AMOUNT DETERMINED BY CLAUSE (D) OF THIS SUBPARAGRAPH IS LESS THAN OR
EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE
ZERO DOLLARS.
(F) NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, WHERE THE
GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE WOULD REDUCE THE PAYOR'S
INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE DIFFERENCE BETWEEN THE
PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS
S. 5678 11
BELOW THE SELF-SUPPORT RESERVE, THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT NO POST-DIVORCE MAINTENANCE IS AWARDED.
(G) MAINTENANCE SHALL BE CALCULATED PRIOR TO CHILD SUPPORT BECAUSE THE
AMOUNT OF MAINTENANCE SHALL BE SUBTRACTED FROM THE PAYOR'S INCOME AND
ADDED TO THE PAYEE'S INCOME AS PART OF THE CALCULATION OF THE CHILD
SUPPORT OBLIGATION.
(2) WHERE CHILD SUPPORT WILL NOT BE PAID FOR CHILDREN OF THE MARRIAGE,
OR WHERE CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE
PAYOR AS DEFINED IN THIS SUBDIVISION IS THE CUSTODIAL PARENT PURSUANT TO
THE CHILD SUPPORT STANDARDS ACT:
(A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
(B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(C) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
(D) THE COURT SHALL DETERMINE THE LOWER OF THE TWO AMOUNTS DERIVED BY
CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH.
(E) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE
AMOUNT DETERMINED BY CLAUSE (D) OF THIS SUBPARAGRAPH EXCEPT THAT, IF THE
AMOUNT DETERMINED BY CLAUSE (D) OF THIS SUBPARAGRAPH IS LESS THAN OR
EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE
ZERO DOLLARS.
(F) IF CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE
PAYOR AS DEFINED IN THIS SUBDIVISION IS THE CUSTODIAL PARENT PURSUANT TO
THE CHILD SUPPORT STANDARDS ACT, POST-DIVORCE MAINTENANCE SHALL BE
CALCULATED PRIOR TO CHILD SUPPORT BECAUSE THE AMOUNT OF POST-DIVORCE
MAINTENANCE SHALL BE SUBTRACTED FROM THE PAYOR'S INCOME PURSUANT TO THIS
SUBDIVISION AND ADDED TO THE PAYEE'S INCOME PURSUANT TO THIS SUBDIVISION
AS PART OF THE CALCULATION OF THE CHILD SUPPORT OBLIGATION.
(G) NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, WHERE THE
GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE WOULD REDUCE THE PAYOR'S
INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE DIFFERENCE BETWEEN THE
PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS
BELOW THE SELF-SUPPORT RESERVE, THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT NO POST-DIVORCE MAINTENANCE IS AWARDED.
d. [In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph a of this subdivision]
WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL DETER-
MINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AS FOLLOWS:
(1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPH C
OF THIS SUBDIVISION FOR THE INCOME OF PAYOR UP TO AND INCLUDING THE
INCOME CAP; AND
(2) FOR INCOME EXCEEDING THE CAP, THE AMOUNT OF ADDITIONAL MAINTENANCE
AWARDED, IF ANY, SHALL BE WITHIN THE DISCRETION OF THE COURT WHICH SHALL
TAKE INTO CONSIDERATION ANY ONE OR MORE OF THE FACTORS SET FORTH IN
SUBPARAGRAPH ONE OF PARAGRAPH E OF THIS SUBDIVISION; AND
(3) THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED AND THE
REASONS FOR ITS DECISION IN WRITING OR ON THE RECORD. SUCH DECISION,
WHETHER IN WRITING OR ON THE RECORD, MAY NOT BE WAIVED BY EITHER PARTY
OR COUNSEL.
E. (1) THE COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION UP TO THE INCOME CAP IN ACCORDANCE WITH PARAGRAPH C OF THIS
S. 5678 12
SUBDIVISION, UNLESS THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE
GUIDELINE OBLIGATION IS UNJUST OR INAPPROPRIATE, WHICH FINDING SHALL BE
BASED UPON CONSIDERATION OF ANY ONE OR MORE OF THE FOLLOWING FACTORS,
AND ADJUSTS THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION ACCORDING-
LY BASED UPON SUCH CONSIDERATION:
(A) THE AGE AND HEALTH OF THE PARTIES;
(B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING A
HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
(C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
(D) THE TERMINATION OF A CHILD SUPPORT AWARD BEFORE THE TERMINATION OF
THE MAINTENANCE AWARD WHEN THE CALCULATION OF MAINTENANCE WAS BASED UPON
CHILD SUPPORT BEING AWARDED WHICH RESULTED IN A MAINTENANCE AWARD LOWER
THAN IT WOULD HAVE BEEN HAD CHILD SUPPORT NOT BEEN AWARDED;
(E) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES MADE IN CONTEMPLATION OF A MATRIMONIAL ACTION WITHOUT
FAIR CONSIDERATION;
(F) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
(G) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
(H) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
(I) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
(J) THE TAX CONSEQUENCES TO EACH PARTY;
(K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
(L) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
HAVING FORGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE;
(M) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY AND THE INCOME OR
IMPUTED INCOME ON THE ASSETS SO DISTRIBUTED;
(N) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE
OTHER PARTY; AND
(O) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
(2) WHERE THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE POST-DI-
VORCE MAINTENANCE GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE
COURT SHALL SET FORTH, IN A WRITTEN DECISION OR ON THE RECORD, THE UNAD-
JUSTED POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION, THE FACTORS IT
CONSIDERED, AND THE REASONS THAT THE COURT ADJUSTED THE POST-DIVORCE
MAINTENANCE OBLIGATION. SUCH DECISION SHALL NOT BE WAIVED BY EITHER
PARTY OR COUNSEL.
F. THE DURATION OF POST-DIVORCE MAINTENANCE MAY BE DETERMINED AS
FOLLOWS:
(1) THE COURT MAY DETERMINE THE DURATION OF POST-DIVORCE MAINTENANCE
IN ACCORDANCE WITH THE FOLLOWING ADVISORY SCHEDULE:
LENGTH OF THE MARRIAGE PERCENT OF THE LENGTH OF THE
MARRIAGE FOR WHICH
MAINTENANCE WILL BE PAYABLE
0 UP TO AND INCLUDING 15 YEARS 15% - 30%
S. 5678 13
MORE THAN 15 UP TO AND INCLUDING 30% - 40%
20 YEARS
MORE THAN 20 YEARS 35% - 50%
(2) IN DETERMINING THE DURATION OF POST-DIVORCE MAINTENANCE, WHETHER
OR NOT THE COURT UTILIZES THE ADVISORY SCHEDULE, IT SHALL CONSIDER THE
FACTORS LISTED IN SUBPARAGRAPH ONE OF PARAGRAPH E OF THIS SUBDIVISION
AND SHALL SET FORTH, IN A WRITTEN DECISION OR ON THE RECORD, THE FACTORS
IT CONSIDERED. SUCH DECISION SHALL NOT BE WAIVED BY EITHER PARTY OR
COUNSEL. NOTHING HEREIN SHALL PREVENT THE COURT FROM AWARDING NON-DURA-
TIONAL MAINTENANCE IN AN APPROPRIATE CASE.
(3) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARA-
GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE DEATH OF EITHER
PARTY OR UPON THE PAYEE'S VALID OR INVALID MARRIAGE, OR UPON MODIFICA-
TION PURSUANT TO PARAGRAPH B OF SUBDIVISION NINE OF THIS PART OR SECTION
TWO HUNDRED FORTY-EIGHT OF THIS ARTICLE.
(4) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARA-
GRAPH, WHEN DETERMINING DURATION OF POST-DIVORCE MAINTENANCE, THE COURT
SHALL TAKE INTO CONSIDERATION ANTICIPATED RETIREMENT ASSETS, BENEFITS,
AND RETIREMENT ELIGIBILITY AGE OF BOTH PARTIES IF ASCERTAINABLE AT THE
TIME OF DECISION. IF NOT ASCERTAINABLE AT THE TIME OF DECISION, THE
ACTUAL FULL OR PARTIAL RETIREMENT OF THE PAYOR WITH SUBSTANTIAL DIMINU-
TION OF INCOME SHALL BE A BASIS FOR A MODIFICATION OF THE AWARD.
G. WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT
ENTER A MAINTENANCE ORDER OR JUDGMENT UNLESS THE COURT INFORMS THE
UNREPRESENTED PARTY OR PARTIES OF THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION.
H. NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE CONSTRUED TO ALTER
THE RIGHTS OF THE PARTIES TO VOLUNTARILY ENTER INTO VALIDLY EXECUTED
AGREEMENTS OR STIPULATIONS WHICH DEVIATE FROM THE POST-DIVORCE MAINTE-
NANCE GUIDELINE OBLIGATION.
I. WHEN A PAYOR HAS DEFAULTED AND/OR THE COURT MAKES A FINDING AT THE
TIME OF TRIAL THAT IT WAS PRESENTED WITH INSUFFICIENT EVIDENCE TO DETER-
MINE INCOME, THE COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE BASED
UPON THE NEEDS OF THE PAYEE OR THE STANDARD OF LIVING OF THE PARTIES
PRIOR TO COMMENCEMENT OF THE DIVORCE ACTION, WHICHEVER IS GREATER. SUCH
ORDER MAY BE RETROACTIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE
IN CIRCUMSTANCES UPON A SHOWING OF SUBSTANTIAL NEWLY DISCOVERED
EVIDENCE.
J. POST-DIVORCE MAINTENANCE MAY BE MODIFIED PURSUANT TO PARAGRAPH B OF
SUBDIVISION NINE OF THIS PART.
K. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF
THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SUBDIVISION, BROUGHT
PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAINTENANCE
SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF CIRCUM-
STANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION WHERE THE PARTIES HAVE
ENTERED INTO AN AGREEMENT PROVIDING FOR MAINTENANCE PURSUANT TO SUBDIVI-
SION THREE OF THIS PART ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF THE
CHAPTER OF THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SUBDIVI-
SION, BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE
MAINTENANCE SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE
OF CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH AGREEMENT.
M. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF
THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SUBDIVISION, BROUGHT
S. 5678 14
PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAINTENANCE
SET FORTH IN PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL NOT APPLY.
N. IN ANY ACTION OR PROCEEDING FOR MODIFICATION WHERE THE PARTIES HAVE
ENTERED INTO AN AGREEMENT PROVIDING FOR MAINTENANCE PURSUANT TO SUBDIVI-
SION THREE OF THIS PART ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF THE
CHAPTER OF THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SUBDIVI-
SION, BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE
MAINTENANCE SET FORTH IN PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL
NOT APPLY.
O. IN ANY DECISION MADE PURSUANT TO THIS SUBDIVISION THE COURT SHALL,
WHERE APPROPRIATE, CONSIDER THE EFFECT OF A BARRIER TO REMARRIAGE, AS
DEFINED IN SUBDIVISION SIX OF SECTION TWO HUNDRED FIFTY-THREE OF THIS
ARTICLE, ON THE FACTORS ENUMERATED IN PARAGRAPH E OF THIS SUBDIVISION.
S 5. Subparagraph 1 of paragraph b of subdivision 9 of part B of
section 236 of the domestic relations law, as amended by chapter 182 of
the laws of 2010, is amended to read as follows:
(1) Upon application by either party, the court may annul or modify
any prior order or judgment MADE AFTER TRIAL as to maintenance, upon a
showing of the [recipient's] PAYEE'S inability to be self-supporting or
UPON A SHOWING OF a substantial change in circumstance [or termination
of child support awarded pursuant to section two hundred forty of this
article], including financial hardship OR UPON ACTUAL FULL OR PARTIAL
RETIREMENT OF THE PAYOR IF THE RETIREMENT RESULTS IN A SUBSTANTIAL
CHANGE IN FINANCIAL CIRCUMSTANCES. Where, after the effective date of
this part, [a separation] AN agreement remains in force, no modification
of [a prior] AN order or judgment incorporating the terms of said agree-
ment shall be made as to maintenance without a showing of extreme hard-
ship on either party, in which event the judgment or order as modified
shall supersede the terms of the prior agreement and judgment for such
period of time and under such circumstances as the court determines. The
court shall not reduce or annul any arrears of maintenance which have
been reduced to final judgment pursuant to section two hundred forty-
four of this article. No other arrears of maintenance which have accrued
prior to the making of such application shall be subject to modification
or annulment unless the defaulting party shows good cause for failure to
make application for relief from the judgment or order directing such
payment prior to the accrual of such arrears and the facts and circum-
stances constituting good cause are set forth in a written memorandum of
decision. Such modification may increase maintenance nunc pro tunc as of
the date of application based on newly discovered evidence. Any retroac-
tive amount of maintenance due shall, except as provided for herein, be
paid in one sum or periodic sums, as the court directs, taking into
account any temporary or partial payments which have been made. The
provisions of this subdivision shall not apply to a separation agreement
made prior to the effective date of this part.
S 6. Section 248 of the domestic relations law, as amended by chapter
604 of the laws of 1975, is amended to read as follows:
S 248. Modification of judgment or order in action for divorce or
annulment. Where an action for divorce or for annulment or for a decla-
ration of the nullity of a void marriage is brought by a [husband or
wife] SPOUSE, and a final judgment of divorce or a final judgment
annulling the marriage or declaring its nullity has been rendered, the
court, by order upon the application of the [husband] PAYOR on notice,
and on proof of the marriage of the [wife] PAYEE after such final judg-
ment, must modify such final judgment and any orders made with respect
thereto by annulling the provisions of such final judgment or orders, or
S. 5678 15
of both, directing payments of money for the support of the [wife]
PAYEE. The court in its discretion upon application of the [husband]
PAYOR on notice, upon proof that the [wife] PAYEE is habitually living
with another [man] PERSON and holding HIMSELF OR herself out as [his
wife] THE SPOUSE OF SUCH OTHER PERSON, although not married to such
[man] OTHER PERSON, may modify such final judgment and any orders made
with respect thereto by annulling the provisions of such final judgment
or orders or of both, directing payment of money for the support of such
[wife] PAYEE.
S 7. Section 412 of the family court act, as amended by chapter 281 of
the laws of 1980, is amended to read as follows:
S 412. Married person's duty to support spouse. 1. A married person is
chargeable with the support of his or her spouse and, [if possessed of
sufficient means or able to earn such means, may be required to pay for
his or her support a fair and reasonable sum, as] EXCEPT WHERE THE
PARTIES HAVE ENTERED INTO AN AGREEMENT PURSUANT TO SECTION FOUR HUNDRED
TWENTY-FIVE OF THIS ARTICLE PROVIDING FOR SUPPORT, the court [may deter-
mine, having due regard to the circumstances of the respective parties],
UPON APPLICATION BY A PARTY, SHALL MAKE ITS AWARD FOR SPOUSAL SUPPORT
PURSUANT TO THE PROVISIONS OF THIS PART.
2. FOR PURPOSES OF THIS SECTION, THE FOLLOWING DEFINITIONS SHALL BE
USED:
(A) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
(B) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
(C) "INCOME" SHALL MEAN INCOME AS DEFINED IN THE CHILD SUPPORT STAND-
ARDS ACT AND CODIFIED IN SECTION TWO HUNDRED FORTY OF THE DOMESTIC
RELATIONS LAW AND SECTION FOUR HUNDRED THIRTEEN OF THIS ARTICLE WITHOUT
SUBTRACTING SPOUSAL SUPPORT ACTUALLY PAID OR TO BE PAID TO A SPOUSE THAT
IS A PARTY TO THE INSTANT ACTION PURSUANT TO SUBCLAUSE (C) OF CLAUSE
(VII) OF SUBPARAGRAPH FIVE OF PARAGRAPH (B) OF SUBDIVISION ONE-B OF
SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW AND SUBCLAUSE
(C) OF CLAUSE (VII) OF SUBPARAGRAPH FIVE OF PARAGRAPH (B) OF SUBDIVISION
ONE OF SECTION FOUR HUNDRED THIRTEEN OF THIS ARTICLE.
(D) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING ONE HUNDRED
SEVENTY-FIVE THOUSAND DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED,
HOWEVER, BEGINNING JANUARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY
TWO YEARS THEREAFTER, THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF
THE AVERAGE ANNUAL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR
ALL URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT
OF LABOR BUREAU OF LABOR STATISTICS FOR THE PRIOR TWO YEARS MULTIPLIED
BY THE THEN INCOME CAP AND THEN ROUNDED TO THE NEAREST ONE THOUSAND
DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND PUBLISH
THE INCOME CAP.
(E) "GUIDELINE AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED
BY THE APPLICATION OF SUBDIVISION THREE OR FOUR OF THIS SECTION.
(F) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS
DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW AND SECTION FOUR HUNDRED
THIRTEEN OF THIS ARTICLE.
(G) "AGREEMENT" SHALL HAVE THE SAME MEANING AS PROVIDED IN SUBDIVISION
THREE OF PART B OF SECTION TWO HUNDRED THIRTY-SIX OF THE DOMESTIC
RELATIONS LAW.
3. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS
FOLLOWS:
S. 5678 16
(A) WHERE CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE AND
WHERE THE PAYOR AS DEFINED IN THIS SECTION IS ALSO THE NON-CUSTODIAL
PARENT PURSUANT TO THE CHILD SUPPORT STANDARDS ACT:
(1) THE COURT SHALL SUBTRACT TWENTY-FIVE PERCENT OF THE PAYEE'S INCOME
FROM TWENTY PERCENT OF THE PAYOR'S INCOME.
(2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
(4) THE COURT SHALL DETERMINE THE LOWER OF THE TWO AMOUNTS DERIVED BY
SUBPARAGRAPHS ONE AND THREE OF THIS PARAGRAPH.
(5) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
MINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF THE AMOUNT
DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR EQUAL
TO ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
(6) SPOUSAL SUPPORT SHALL BE CALCULATED PRIOR TO CHILD SUPPORT BECAUSE
THE AMOUNT OF SPOUSAL SUPPORT SHALL BE SUBTRACTED FROM THE PAYOR'S
INCOME AND ADDED TO THE PAYEE'S INCOME AS PART OF THE CALCULATION OF THE
CHILD SUPPORT OBLIGATION.
(B) WHERE CHILD SUPPORT WILL NOT BE PAID FOR CHILDREN OF THE MARRIAGE,
OR WHERE CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE
PAYOR AS DEFINED IN THIS SECTION IS THE CUSTODIAL PARENT PURSUANT TO THE
CHILD SUPPORT STANDARDS ACT:
(1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
(2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
(3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
(4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
GRAPHS ONE AND THREE OF THIS PARAGRAPH.
(5) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
MINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF THE AMOUNT
DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR EQUAL
TO ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
(6) IF CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE
PAYOR AS DEFINED IN THIS SECTION IS THE CUSTODIAL PARENT PURSUANT TO THE
CHILD SUPPORT STANDARDS ACT, SPOUSAL SUPPORT SHALL BE CALCULATED PRIOR
TO CHILD SUPPORT BECAUSE THE AMOUNT OF SPOUSAL SUPPORT SHALL BE
SUBTRACTED FROM THE PAYOR'S INCOME AND ADDED TO THE PAYEE'S INCOME AS
PART OF THE CALCULATION OF THE CHILD SUPPORT OBLIGATION.
4. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS:
(A) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBDIVISION
THREE OF THIS SECTION FOR THE INCOME OF THE PAYOR UP TO AND INCLUDING
THE INCOME CAP; AND
(B) FOR INCOME EXCEEDING THE CAP, THE AMOUNT OF ADDITIONAL SPOUSAL
SUPPORT AWARDED, IF ANY, SHALL BE WITHIN THE DISCRETION OF THE COURT
WHICH SHALL TAKE INTO CONSIDERATION ANY ONE OR MORE OF THE FACTORS SET
FORTH IN PARAGRAPH (A) OF SUBDIVISION SIX OF THIS SECTION; AND
(C) THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED AND THE
REASONS FOR ITS DECISION IN WRITING OR ON THE RECORD. SUCH DECISION,
WHETHER IN WRITING OR ON THE RECORD, MAY NOT BE WAIVED BY EITHER PARTY
OR COUNSEL.
5. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WHERE THE GUIDELINE
AMOUNT OF SPOUSAL SUPPORT WOULD REDUCE THE PAYOR'S INCOME BELOW THE
S. 5678 17
SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE AMOUNT OF SPOUS-
AL SUPPORT SHALL BE THE DIFFERENCE BETWEEN THE PAYOR'S INCOME AND THE
SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS BELOW THE SELF-SUPPORT
RESERVE, THERE SHALL BE A REBUTTABLE PRESUMPTION THAT NO SPOUSAL SUPPORT
IS AWARDED.
6. (A) THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
UP TO THE CAP IN ACCORDANCE WITH SUBDIVISION THREE OF THIS SECTION,
UNLESS THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT IS
UNJUST OR INAPPROPRIATE, WHICH FINDING SHALL BE BASED UPON CONSIDERATION
OF ANY ONE OR MORE OF THE FOLLOWING FACTORS, AND ADJUSTS THE GUIDELINE
AMOUNT OF SPOUSAL SUPPORT ACCORDINGLY BASED UPON CONSIDERATION OF THE
FOLLOWING FACTORS:
(1) THE AGE AND HEALTH OF THE PARTIES;
(2) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING A
HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
(3) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
(4) THE TERMINATION OF A CHILD SUPPORT AWARD DURING THE PENDENCY OF
THE SPOUSAL SUPPORT AWARD WHEN THE CALCULATION OF SPOUSAL SUPPORT WAS
BASED UPON CHILD SUPPORT BEING AWARDED WHICH RESULTED IN A SPOUSAL
SUPPORT AWARD LOWER THAN IT WOULD HAVE BEEN HAD CHILD SUPPORT NOT BEEN
AWARDED;
(5) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES MADE IN CONTEMPLATION OF A SUPPORT PROCEEDING WITHOUT
FAIR CONSIDERATION;
(6) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-SUPPORT PROCEEDINGS SEPARATE HOUSEHOLD;
(7) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
(8) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
(9) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
(10) THE TAX CONSEQUENCES TO EACH PARTY;
(11) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
(12) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
HAVING FORGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE;
(13) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE
OTHER PARTY;
(14) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
(B) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE GUIDELINE AMOUNT OF
SPOUSAL SUPPORT PURSUANT TO THIS SUBDIVISION, THE COURT SHALL SET FORTH,
IN A WRITTEN DECISION OR ON THE RECORD, THE GUIDELINE AMOUNT OF SPOUSAL
SUPPORT, THE FACTORS IT CONSIDERED, AND THE REASONS THAT THE COURT
ADJUSTED THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT. SUCH DECISION, WHETHER
IN WRITING OR ON THE RECORD, SHALL NOT BE WAIVED BY EITHER PARTY OR
COUNSEL.
S. 5678 18
(C) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL
NOT ENTER A SPOUSAL SUPPORT ORDER UNLESS THE COURT INFORMS THE UNREPRE-
SENTED PARTY OR PARTIES OF THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT.
7. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT MAKES A FINDING AT THE
TIME OF TRIAL THAT IT WAS PRESENTED WITH INSUFFICIENT EVIDENCE TO DETER-
MINE INCOME, THE COURT SHALL ORDER THE SPOUSAL SUPPORT AWARD BASED UPON
THE NEEDS OF THE PAYEE OR THE STANDARD OF LIVING OF THE PARTIES PRIOR TO
COMMENCEMENT OF THE SPOUSAL SUPPORT PROCEEDING, WHICHEVER IS GREATER.
SUCH ORDER MAY BE RETROACTIVELY MODIFIED UPWARD WITHOUT A SHOWING OF
CHANGE IN CIRCUMSTANCES UPON A SHOWING OF SUBSTANTIAL NEWLY DISCOVERED
EVIDENCE.
8. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF SPOUSAL
SUPPORT EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS
OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO
THIS ARTICLE, THE SPOUSAL SUPPORT GUIDELINES SET FORTH IN THIS SECTION
SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANTING MODIFICATION
OF SUCH SPOUSAL SUPPORT ORDER.
9. IN ANY ACTION OR PROCEEDING FOR MODIFICATION WHERE SPOUSAL SUPPORT
OR MAINTENANCE WAS ESTABLISHED IN A WRITTEN AGREEMENT PROVIDING FOR
SPOUSAL SUPPORT MADE PURSUANT TO SECTION FOUR HUNDRED TWENTY-FIVE OF
THIS ARTICLE OR MADE PURSUANT TO SUBDIVISION THREE OF PART B OF SECTION
TWO HUNDRED THIRTY-SIX OF THE DOMESTIC RELATIONS LAW ENTERED INTO PRIOR
TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND FIFTEEN
WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO THIS ARTICLE, THE SPOUS-
AL SUPPORT GUIDELINES SET FORTH IN THIS SECTION SHALL NOT CONSTITUTE A
CHANGE OF CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SPOUSAL SUPPORT
ORDER.
10. THE COURT MAY MODIFY AN ORDER OF SPOUSAL SUPPORT UPON A SHOWING OF
A SUBSTANTIAL CHANGE IN CIRCUMSTANCES. UNLESS SO MODIFIED, ANY ORDER FOR
SPOUSAL SUPPORT ISSUED PURSUANT TO THIS SECTION SHALL CONTINUE UNTIL THE
EARLIEST TO OCCUR OF THE FOLLOWING:
(A) A WRITTEN STIPULATION OR AGREEMENT BETWEEN THE PARTIES;
(B) AN ORAL STIPULATION OR AGREEMENT BETWEEN THE PARTIES ENTERED INTO
ON THE RECORD IN OPEN COURT;
(C) ISSUANCE OF A JUDGMENT OF DIVORCE OR OTHER ORDER IN A MATRIMONIAL
PROCEEDING;
(D) THE DEATH OF EITHER PARTY.
S 8. This act shall take effect on the one hundred twentieth day after
it shall have become a law and shall apply to matrimonial actions and
family court actions for spousal support commenced on or after such
effective date; provided however that section three of this act shall
take effect on the thirtieth day after it shall have become a law and
shall apply to matrimonial actions commenced on or after such effective
date. Nothing in this act shall be deemed to affect the validity of any
agreement made pursuant to subdivision 3 of part B of section 236 of the
domestic relations law or section 425 of the family court act prior to
the effective date of this act.
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