NY State Senate Bill 2015-S5691

Senate Bill S5691

Signed By Governor

2015-2016 Legislative Session

Relates to spousal maintenance and child support in supreme and family court

download bill text pdf

Archive: Last Bill Status Via A7637 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Oct 26, 2015	signed chap.387
Oct 14, 2015	delivered to governor
Jun 18, 2015	returned to assembly passed senate substituted for s5691
Jun 18, 2015	substituted by a7637
Jun 08, 2015	advanced to third reading
Jun 03, 2015	2nd report cal.
Jun 02, 2015	1st report cal.1231
May 28, 2015	referred to judiciary

Votes

- Jun 18, 2015 - Floor Vote
  A7637
  
  63
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 18, 2015
      
      aye (63)
      
      Addabbo Jr.
      
      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
      
      Libous
      
      Little
      
      Marcellino
      
      Marchione
      
      Martins
      
      Montgomery
      
      Murphy
      
      Nozzolio
      
      O'Mara
      
      Ortt
      
      Panepinto
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Sampson
      
      Sanders Jr.
      
      Savino
      
      Serino
      
      Serrano
      
      Seward
      
      Skelos
      
      Squadron
      
      Stavisky
      
      Stewart-Cousins
      
      Valesky
      
      Venditto
      
      Young
  Jun 2, 2015 - Judiciary Committee Vote
  S5691
  
  20
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Judiciary Committee Vote: Jun 2, 2015
      
      aye (20)
      
      Amedore
      
      Avella
      
      Bonacic
      
      Breslin
      
      Comrie
      
      Diaz
      
      Dilan
      
      Espaillat
      
      Hannon
      
      Hoylman-Sigal
      
      LaValle
      
      Lanza
      
      Nozzolio
      
      O'Mara
      
      Perkins
      
      Ranzenhofer
      
      Savino
      
      Serino
      
      Stavisky
      
      Venditto
      
      aye wr (1)
      
      DeFrancisco
      
      excused (1)
      
      Hassell-Thompson

2015-S5691 (ACTIVE) - Details

See Assembly Version of this Bill:: A7637
Law Section:: Family Court Act
Laws Affected:: Amd §413, Fam Ct Act; amd §240, Dom Rel L

2015-S5691 (ACTIVE) - Summary

Relates to spousal maintenance and child support in supreme and family court.

2015-S5691 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5691

TITLE OF BILL:

An act to amend the family court act and the domestic relations law,
in relation to spousal maintenance and child support in supreme and
family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

The Child Support Standards Act has promoted uniformity and fairness
through application of presumptive percentages and enumerated factors
to be considered in the calculation of income, deductions from income
and the bases for departures from the presumptive percentages.
However, one source of persistent confusion has been the treatment of
spousal maintenance in the calculation of child support with respect
to the income of both the recipient and the payor spouse. This measure
would clear up the ambiguity as to the implications for both parties.

First, the measure would amend Family Court Act § 413(1)(b)(5)(iii)
and Domestic Relations Law § 240(1-b)(5)(iii) to add a new subclause
(I) to each that would require that alimony or spousal maintenance
actually paid to a spouse who is a party to the action must be added
to the recipient spouse's income, provided that the order contains an,

automatic adjustment to take effect upon the termination of the
maintenance award. This addition would be based upon an amount already
paid, e.g , an amount reported on the recipient spouse's last income
tax return, and would not simply be an estimate of future payments. In
that respect, it codifies several appellate cases. See, e.g., Simon v.
Simon, 55 A.D.3d 477 (1st Dept., 2008); Krukencamp v.  Krukencamp, 54
A.D.3d 345 (2nd Dept., 2008); Lee v. Lee, 79 A.D.3d 473 (2nd
Dept.2005); Huber v. Huber, 229 A.D.2d 904 (4th Sept., 1996).

Second, this measure amends the existing provision in both Family
Court Act § 413(1)(b)(5)(vii)(C) and Domestic Relations Law
240(1-b)(5)(vii)(C) to clarify that, where spousal maintenance
payments are deducted from the payor's income, the order must contain
a specific provision adjusting the child support amount automatically
upon the termination of the spousal maintenance award. This relieves
the custodial parent of the burden of moving for a modification of the
child support order upon the termination of maintenance but leaves
open the possibility for either or both parties to seek a modification
of the automatic adjustment if, at the point where maintenance
terminates, the income of either of the parties has changed in an
amount that would qualify for modification under Family Court Act
451(3)(b)(ii) or Domestic Relations Law § 236B(9)(b)(2)(ii), e.g., in
excess of 15% or a lapse of three years or more. The specific
adjustment in the amount of child support is without prejudice to
either party's right to seek a modification in accordance with Family
Court Act § 451(3) or Domestic Relations Law § 236B(9)(b)(2) with the
proviso that in a subsequent action for modification, the inclusion of
the specific adjustment shall not by itself constitute a "substantial
change of circumstances." One commentator has observed that the
Legislature simply failed to consider the ambiguity of the statutory


provision and his suggestion for the courts would apply with greater
force if this measure is enacted:

It is suggested that the court might comply with the requirement that
there be a specific adjustment by making same in accordance with
existing income levels, so long as either party is free to seek
modification at any time upon a change in circumstances. This approach
permits compliance with the statutory proviso without casting the
prospective adjustment in stone because it keeps the courthouse door
open to either party in the event that the prospective adjustment is
out of line with actual income levels.  See T. Tippins, New York
Matrimonial Law and Practice § 7:33 (Updated Nov., 2014).

Numerous cases have held that durational spousal maintenance payments
should not be deducted from the payor's income unless the order
specifies some mechanism for an adjustment upon termination of the
maintenance. See, e.g., Zufall v. Zufall, 109 A.D.3d 1135 (4th Dept.,
2013); Schmitt v. Schmitt, 107.A.D.3d 1529 (4th Dept., 2013); Kerrigan
v. Kerrigan, 71 A.D.3d 737 (2nd Dept., 2010); Smith v Smith, 1 A.D.3d
870, 872-3 (3rd Dept., 2003)(citing Matter of Baker v Baker, 291 AD2d
751, 752-753 (3rd Dept., 2002) and Kessinger v Kessinger, 202 AD2d
752, 753-754 (3rd Dept., 1994)). By including not only a mechanism but
also a specific adjustment, in a child support order to take effect
upon the termination of the maintenance award, this measure would
enhance the long-term fairness of the order.

The statutory provisions for child support should reflect the fact
that spousal maintenance is money no longer available as income to the
payor, but constitutes income to the payee so long as the order or
agreement for such maintenance lasts. New York State and Federal tax
codes incorporate these concepts by allowing tax deductions for the
payor and requiring that it be considered as income to the payee.
There is no reason to distinguish the implications of maintenance when
calculating child support in both Supreme and Family Court cases.

This measure, which would have no fiscal impact upon the State, would
take effect on the ninetieth day after it shall have become a law.

Legislative History:

None. New proposal.

2015-S5691 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5691

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 28, 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 family court act and the domestic relations law, in
  relation to spousal maintenance and child support in supreme and fami-
  ly court

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subclauses (G) and (H) of clause (iii) of subparagraph 5 of
paragraph  (b)  of subdivision 1 of section 413 of the family court act,
as added by chapter 567 of the laws of  1989,  are  amended  and  a  new
subclause (I) is added to read as follows:
  (G) fellowships and stipends, [and]
  (H) annuity payments[;], AND
  (I) ALIMONY OR MAINTENANCE ACTUALLY PAID OR TO BE PAID TO A SPOUSE WHO
IS  A PARTY TO THE INSTANT ACTION PURSUANT TO AN EXISTING COURT ORDER OR
CONTAINED IN THE ORDER TO BE ENTERED BY THE  COURT,  OR  PURSUANT  TO  A
VALIDLY  EXECUTED  WRITTEN AGREEMENT, IN WHICH EVENT THE ORDER OR AGREE-
MENT SHALL PROVIDE FOR A SPECIFIC ADJUSTMENT, IN  ACCORDANCE  WITH  THIS
SUBDIVISION, IN THE AMOUNT OF CHILD SUPPORT PAYABLE UPON THE TERMINATION
OF  ALIMONY  OR  MAINTENANCE TO SUCH SPOUSE; PROVIDED, HOWEVER, THAT THE
SPECIFIC ADJUSTMENT IN THE AMOUNT OF CHILD SUPPORT IS WITHOUT  PREJUDICE
TO EITHER PARTY'S RIGHT TO SEEK A MODIFICATION IN ACCORDANCE WITH SUBDI-
VISION  THREE  OF SECTION FOUR HUNDRED FIFTY-ONE OF THIS ARTICLE.  IN AN
ACTION OR PROCEEDING TO MODIFY AN ORDER OF CHILD SUPPORT,  INCLUDING  AN
ORDER  INCORPORATING  WITHOUT  MERGING AN AGREEMENT, ISSUED PRIOR TO THE
EFFECTIVE DATE OF THIS SUBCLAUSE, THE PROVISIONS OF THIS SUBCLAUSE SHALL
NOT, BY THEMSELVES, CONSTITUTE A  SUBSTANTIAL  CHANGE  OF  CIRCUMSTANCES
PURSUANT  TO  PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION FOUR HUNDRED
FIFTY-ONE OF THIS ARTICLE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09654-03-5

S. 5691                             2

  S 2. Subclause (C) of clause (vii) of subparagraph 5 of paragraph  (b)
of  subdivision  1  of  section 413 of the family court act, as added by
chapter 567 of the laws of 1989, is amended to read as follows:
  (C)  alimony  or  maintenance  actually paid or to be paid to a spouse
[that] WHO is a party to the instant  action  pursuant  to  an  existing
court  order  or  contained  in the order to be entered by the court, or
pursuant to a validly executed written agreement,  [provided]  IN  WHICH
EVENT  the  order  or  agreement [provides] SHALL PROVIDE for a specific
adjustment, in accordance with this subdivision, in the amount of  child
support  payable  upon the termination of alimony or maintenance to such
spouse[,]; PROVIDED, HOWEVER, THAT THE SPECIFIC ADJUSTMENT IN THE AMOUNT
OF CHILD SUPPORT IS WITHOUT PREJUDICE TO EITHER PARTY'S RIGHT TO SEEK  A
MODIFICATION  IN  ACCORDANCE  WITH  SUBDIVISION  THREE  OF  SECTION FOUR
HUNDRED FIFTY-ONE OF THIS ARTICLE.  IN AN ACTION OR PROCEEDING TO MODIFY
AN ORDER OF CHILD SUPPORT,  INCLUDING  AN  ORDER  INCORPORATING  WITHOUT
MERGING  AN  AGREEMENT,  ISSUED  PRIOR  TO  THE  EFFECTIVE  DATE OF THIS
SUBCLAUSE, THE PROVISIONS OF THIS SUBCLAUSE SHALL  NOT,  BY  THEMSELVES,
CONSTITUTE  A  SUBSTANTIAL CHANGE OF CIRCUMSTANCES PURSUANT TO PARAGRAPH
(A) OF SUBDIVISION THREE OF SECTION FOUR HUNDRED FIFTY-ONE OF THIS ARTI-
CLE.
  S 3. Subclauses (G) and (H) of clause (iii) of subparagraph 5 of para-
graph (b) of subdivision 1-b of section 240 of  the  domestic  relations
law,  as added by chapter 567 of the laws of 1989, are amended and a new
subclause (I) is added to read as follows:
  (G) fellowships and stipends, [and]
  (H) annuity payments[;], AND
  (I) ALIMONY OR MAINTENANCE ACTUALLY PAID OR TO BE PAID TO A SPOUSE WHO
IS A PARTY TO THE INSTANT ACTION PURSUANT TO AN EXISTING COURT ORDER  OR
CONTAINED  IN  THE  ORDER  TO  BE ENTERED BY THE COURT, OR PURSUANT TO A
VALIDLY EXECUTED WRITTEN AGREEMENT, IN WHICH EVENT THE ORDER  OR  AGREE-
MENT  SHALL  PROVIDE  FOR A SPECIFIC ADJUSTMENT, IN ACCORDANCE WITH THIS
SUBDIVISION, IN THE AMOUNT OF CHILD SUPPORT PAYABLE UPON THE TERMINATION
OF ALIMONY OR MAINTENANCE TO SUCH SPOUSE; PROVIDED,  HOWEVER,  THAT  THE
SPECIFIC  ADJUSTMENT IN THE AMOUNT OF CHILD SUPPORT IS WITHOUT PREJUDICE
TO EITHER PARTY'S RIGHT  TO  SEEK  A  MODIFICATION  IN  ACCORDANCE  WITH
SUBPARAGRAPH TWO OF PARAGRAPH B OF SUBDIVISION NINE OF PART B OF SECTION
TWO  HUNDRED  THIRTY-SIX OF THIS ARTICLE.  IN AN ACTION OR PROCEEDING TO
MODIFY AN ORDER OF CHILD SUPPORT, INCLUDING AN ORDER INCORPORATING WITH-
OUT MERGING AN AGREEMENT, ISSUED PRIOR TO THE  EFFECTIVE  DATE  OF  THIS
SUBCLAUSE,  THE  PROVISIONS  OF THIS SUBCLAUSE SHALL NOT, BY THEMSELVES,
CONSTITUTE A SUBSTANTIAL CHANGE OF CIRCUMSTANCES PURSUANT TO PARAGRAPH B
OF SUBDIVISION NINE OF PART B OF SECTION TWO HUNDRED THIRTY-SIX OF  THIS
ARTICLE.
  S  4. Subclause (C) of clause (vii) of subparagraph 5 of paragraph (b)
of subdivision 1-b of section 240 of  the  domestic  relations  law,  as
added by chapter 567 of the laws of 1989, is amended to read as follows:
  (C)  alimony  or  maintenance  actually paid or to be paid to a spouse
[that] WHO is a party to the instant  action  pursuant  to  an  existing
court  order  or  contained  in the order to be entered by the court, or
pursuant to a validly executed written agreement,  [provided]  IN  WHICH
EVENT  the  order  or  agreement [provides] SHALL PROVIDE for a specific
adjustment, in accordance with this subdivision, in the amount of  child
support  payable  upon the termination of alimony or maintenance to such
spouse[,]; PROVIDED, HOWEVER, THAT THE SPECIFIC ADJUSTMENT IN THE AMOUNT
OF CHILD SUPPORT IS WITHOUT PREJUDICE TO EITHER PARTY'S RIGHT TO SEEK  A
MODIFICATION  IN  ACCORDANCE  WITH  SUBPARAGRAPH  TWO  OF PARAGRAPH B OF

S. 5691                             3

SUBDIVISION NINE OF PART B OF SECTION TWO  HUNDRED  THIRTY-SIX  OF  THIS
ARTICLE.    IN  AN  ACTION  OR  PROCEEDING  TO  MODIFY AN ORDER OF CHILD
SUPPORT, INCLUDING AN ORDER INCORPORATING WITHOUT MERGING AN  AGREEMENT,
ISSUED  PRIOR TO THE EFFECTIVE DATE OF THIS SUBCLAUSE, THE PROVISIONS OF
THIS SUBCLAUSE SHALL NOT, BY THEMSELVES, CONSTITUTE A SUBSTANTIAL CHANGE
OF CIRCUMSTANCES PURSUANT TO PARAGRAPH B OF SUBDIVISION NINE OF  PART  B
OF SECTION TWO HUNDRED THIRTY-SIX OF THIS ARTICLE.
  S  5.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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