Bill S6473-2013

Relates to temporary maintenance awards and maintenance obligations; repealer

Relates to modification of temporary maintenance awards and maintenance obligations.

Details

Actions

  • Jan 28, 2014: REFERRED TO JUDICIARY

Memo

BILL NUMBER:S6473

TITLE OF BILL: An act to amend the domestic relations law and the family court act, in relation to modifications of temporary maintenance awards and maintenance obligations; and repealing section 248 of the domestic relations law, relating thereto

PURPOSE OF BILL: To continue taking steps toward reforming the state's spousal maintenance awards in connection with temporary and final spousal maintenance awards, providing consistency and predictability in calculating maintenance awards; and to update spousal support awards law to mirror the revised provisions for temporary maintenance awards.

SUMMARY OF PROVISIONS OF BILL:

Section 1. Subdivision 5-a of Part B of section 236 of the Domestic Relations Law (DRL) as added by chapter 371 of the laws of 2010, is amended to clarify the calculation of the guideline amount of temporary maintenance awards and to revise the factors to be considered to adjust one guideline amount where the court finds the guideline amount is unjust or inappropriate. This section also reduces the income cap from $500,000 to $300,000.

Section 2. Subdivision 6 of part B of section 236 of the DRL, as amended by chapter 371 of the laws of 2010, is amended to provide, in determining post-divorce maintenance, provisions that track the provisions for determining temporary maintenance. This section also provides for the guideline duration of post-divorce maintenance.

Section 3. Subparagraph 1 of paragraph b of subdivision 9 of Part S of section 236 of the DRL, as amended by chapter 182 of the laws of 2010, is amended to provide that a court may annul or modify a prior order or judgment for maintenance upon a showing of a substantial change in circumstances, including remarriage of the payee if the remarriage results in a substantial change in financial circumstances, and actual retirement of the payor if the retirement results in substantial change in financial circumstances.

Section 4. Section 412 of the Family Court Act, as amended by chapter 231 of the laws of 1960, is amended to mirror the provisions of temporary maintenance set forth in subdivision 5-a of Part B of section 236 of the DRL.

Section 5. Paragraph a of subdivision 1 of Part B of section 236 of the DRL is amended to eliminate from the definition of maintenance that a maintenance award shall terminate upon the recipient's valid or invalid marriage.

Section 6. Subparagraph 7 of paragraph d of subdivision 5 of Part B of section 236 of the DRL, as amended by chapter 281 of the laws of 1980 and as renumbered by chapter 229 of the laws of 2009, is amended to provide that in determining an equitable disposition of property pursuant to subdivision 5(c) of Part B of section 236 of the DRL, 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, celebrity goodwill, or career enhancement. However,

the court, in arriving at an equitable division of marital property, shall consider the direct or indirect contributions, to the development during the marriage of the enhanced earning capacity of the other spouse.

Section 7. Section 248 of the DRL is repealed.

Section 8. Provides for the effective date.

JUSTIFICATION: This bill completes reforms of New York divorce laws begun in 2010 with the adoption of standards for temporary maintenance similar to the standards used for child support. The bill makes several kinds changes to current law. First, it amends the provisions for temporary maintenance enacted in 2010 by lowering the provision's income cap and by making technical and clarifying amendments, including restating in simpler language the method for calculating the temporary maintenance guideline amount. Second, the bill adopts maintenance standards for post-divorce maintenance awards similar to those for temporary maintenance awards. Third, the bill provides increased guidance to courts hearing motions to modify maintenance awards by clarifying that a substantial change in circumstances includes financial hardship, remarriage of the payee if remarriage results in a substantial change in financial circumstances, and actual retirement of the payor if retirement results in a substantial change in financial circumstances. Fourth, the bill extends the concept of guidelines to the Family Court Act's provisions for spousal support. Fifth, within the context of comprehensive legislation providing for post-divorce maintenance guidelines, the bill eliminates increased earning capacity from consideration in the distribution of marital assets. And, sixth, the bill conforms other portions of the Domestic Relations Law to make them consistent with the bill's provisions for post-divorce maintenance.

In 2010, New York State adopted standards for temporary maintenance similar to the standards for child support in the Child Support Standards Act in use since 1989. This reform was a response to serious concerns about the ability of the State's then existing spousal maintenance provisions to produce equitable results. Spousal maintenance awards at the time were inconsistent and unpredictable, creating questions about the fairness of awards and discouraging settlements. Litigation to establish maintenance was lengthy and complex. For parties who could not afford protracted litigation, maintenance was an illusory remedy.

The 2010 reforms began the process of incorporating into provisions for spousal maintenance the concept of marriage as an economic Partnership, an idea that New York State adopted for equitable distribution in 1980. Divorce remedies that look to the economic Partnership premise base maintenance on the recognition that parties make different contributions to a marriage, that only some of those contributions are financial, and that some contributions. Particularly those of caring for children and a household, diminish post-divorce earning prospects.

As stated in the justification for the 2010 temporary maintenance legislation, a commission of the American Academy of Matrimonial Lawyers (AAML Commission) noted that various jurisdictions had adopted

a formula approach to determining spousal support. The AAML Commission recommended use of a formula based on two universal factors, the income of the parties and the length of the marriage. Additionally, the American Law Institute, in "Principles of the Law of Family Dissolution; Analysis and Recommendations" (2000) of the American Law Institute (ALI Principles) identified economic losses that spouses suffer at the end of marriage. These losses often take the form of lower earning capacity for spouses who are primary caretakers of children. The ALI Principles suggest that these losses be shared through a formula for determining post-marital spousal support that takes into account the incomes of the parties and the length of the marriage.

The 2010 temporary maintenance law provided not just consistency but flexibility through provisions allowing the court to adjust guideline amounts up or down when numbers produced by the formula were inappropriate or unjust. Also, the law provided a list of factors for the court to consider when making adjustments and required courts to provide written explanations for their justifications.

Attorneys representing low and middle income parties report that clients, who in spite of great need would have been unable to undertake the litigation necessary for a maintenance award under the vague provisions of the previous law, have been receiving temporary maintenance as a result of the law enacted in 2010. These awards are the result of judicial rulings under the new law and, equally importantly, of settlements informed by clear standards allowing lawyers to predict litigation outcomes. Courts have taken advantage of the provisions providing flexibility and have adjusted awards when necessary for equity in particular cases. Dozens of decisions have been published.

The 2010 law also directed the New York State Law Revision Commission (LRC) to, among other things

"review the maintenance laws of the State, including the way in which they are administered to determine the impact of these laws on post marital economic disparities and the effectiveness of such laws and their administration in achieving the state's policy goals and objectives of ensure that the economic consequences or a divorce are fairly and equitably shared by the divorcing couple." (Sec. 3 of Chapter 371 of the Laws of 2010.)

Following study, including interviews with stakeholders and interested parties, a roundtable discussion with stakeholders, investigation of maintenance laws in other jurisdictions, and analysis of data on maintenance awards in nine counties in the State, the LRC issued its final report on May 15, 2013 of its findings, conclusions and recommendations (the LRC Report). The LRC Report, among other things, recommended that the mathematical formula set forth in the 2010 law for the calculation of the guideline amount of temporary maintenance be continued and that a mathematical formula be similarly used to calculate the guideline amount of post-divorce maintenance, with consideration by the court of a set of factors to determine whether the guideline amount of post-divorce maintenance should be increased where the parties' income exceeds the income cap. The LRC also recommended that the provisions providing for spousal support in

Family Court proceedings be amended to mirror the temporary maintenance law, revised as recommended by the LRC.

This bill incorporates most of the recommendations set forth in the LRC Report.

Section one of this bill makes small adjustments that refine, clarify, and streamline the current temporary maintenance standards law. The provisions for calculating the formula amount have been simplified. Factors for judges to consider when adjusting awards have been condensed and clarified, and factors inapplicable to temporary maintenance removed. Provisions confirming judicial practice, concerning allocation of responsibility for family expenses and the independence of decisions on temporary and cost-divorce maintenance, have been added. The bill retains provisions for courts to consider the length of marriage in setting the duration of maintenance so that judges hearing cases involving short-term marriage may terminate maintenance before the divorce is final. And, last, the bill lowers the income cap used in temporary maintenance provisions from $500,000 to $300,000. The $300,000 cap takes into account the high cost of litigating a right to maintenance without the kind of simplified method provided for families by maintenance guidelines. This cost is sufficiently high so that only the wealthiest divorcing spouses can afford to litigate maintenance.

Section two of this bill extends the benefits of the temporary maintenance provisions to post-divorce maintenance awards. Post-divorce maintenance awards remain the "wild card" in divorce litigation. Awards are still inconsistent and unpredictable, and lengthy, expensive litigation is still necessary to achieve equitable results. Using guidelines based on a formula with flexibility for adjustments up and down for final maintenance will change this.

Much of the second section of the bill tracks the language of the temporary maintenance law, including the restated and clarified provisions set forth in this bill for calculating the guideline amount of a temporary maintenance award. The major differences between the temporary and post-divorce maintenance provisions are the provisions on duration. Temporary maintenance usually lasts until a legal case concludes with a final judgment of divorce, except where courts terminate temporary maintenance prior to the divorce becoming final based on consideration of the length of marriage as mentioned above. Post-divorce maintenance needs its own clear end point, and this bill proscribes a duration calculated as a percent of the length of the marriage. Like the recommendations on duration in the AAML Commission and the ALI Principles, the longer the marriage, the longer the time post-divorce maintenance will be paid. The bill also provides that maintenance payments will end on the death of either patty.

Section three of this bill amends New York's divorce laws to provide guidance for the court in deciding applications for modification of maintenance awards. it specifies that a substantial change in circumstances includes remarriage of the payee spouse but only when the remarriage results in a substantial change in the payee's financial circumstances, and the actual retirement of the payer but only when retirement results in a substantial change in the payor's financial circumstances, in addition to financial hardship. While

remarriage does not necessarily improve financial status, remarriage in some cases may better significantly the financial standing of the payee spouse. When it does, this section allows a judge to modify an earlier order. Just as remarriage does not necessarily improve the financial status of a payee spouse, retirement does not necessarily worsen the financial outlook of a payor spouse. Retirement has become a fluid concept. People commonly work beyond traditional or social security retirement ages, and many who retire from one job find other employment, either full-time or part-time. Judges can make fair determinations about modifications only by examining the changed financial status upon actual retirement, not by speculating or making assumptions about future retirement.

Section four of the bill adopts the guideline approach to spousal support proceedings brought in Family Court. The bill's spousal support provisions closely track provisions for temporary maintenance and make available to vulnerable spouses the same kind consistent, predictable results that maintenance guidelines provide to divorcing couples.

Section six amends the Domestic Relations Law to eliminate a form of marital property, enhanced earning capacity, recognized by the Court of Appeals in O'Brien v O'Brien, 66 NY 2d 576 (1985). Two essential elements of the post-divorce guideline provisions of this bill make possible the elimination of the treatment of enhanced earning capacity as marital assets. First, the formula used in the bill's post-divorce maintenance provisions is based on a rough assessment of future earnings, i.e. current earning capacity, while provisions for adjusting the guideline obligation allow judges to fine-tune the initial assessments about what spouses are likely to earn post-divorce. Second, the provisions for post-marital maintenance in this bill, like obligations created in equitable distribution provisions, allow for payments regardless of whether or not the recipient remarries. Only if maintenance is calculated through use of guidelines for both amount and duration and only if maintenance payments may continue after remarriage can maintenance substitute for treating enhanced earning capacity as a marital asset. To eliminate enhanced earning capacity as a marital asset without these critical reforms to our maintenance laws would be a great in justice to spouses who have sacrificed their education and/or careers for the benefit of the marital partnership.

Sections five and seven conform other portions of the Domestic Relations Law to the changes made in post-divorce maintenance in section two.

LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 6473 IN SENATE January 28, 2014 ___________
Introduced by Sen. HASSELL-THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the domestic relations law and the family court act, in relation to modifications of temporary maintenance awards and mainte- nance obligations; and repealing section 248 of the domestic relations law, relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. 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, in any matrimonial action the court 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]. (5) "Income cap" shall mean up to and including [five] THREE hundred thousand dollars of the payor's annual income; provided, however, begin- ning January thirty-first, two thousand [twelve] FOURTEEN and every two years thereafter, the [payor's annual] income CAP amount shall increase by the product 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 two year period 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. (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. (9)] (7) "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. c. [The court shall determine the guideline amount of temporary main- tenance in accordance with the provisions of this paragraph after deter- mining the income of the parties: (1) Where the payor's income is up to and including the income cap: (a) the court shall subtract twenty percent of the income of the payee from thirty percent of the 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 income of the payee from the amount derived from clause (b) of this subparagraph. (d) the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars. (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 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)]
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 AS FOLLOWS: (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 TEMPORARY MAINTENANCE SHALL BE THE AMOUNT DETERMINED 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 TEMPORARY MAINTENANCE SHALL BE ZERO DOLLARS. D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE AS FOLLOWS: (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA- GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL INCOMES OF PAYOR AND PAYEE. (2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA- GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE. (3) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE EITHER: (A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH; OR (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH H OF THIS SUBDIVISION. (4) In any decision made pursuant to CLAUSE (B) OF SUBPARAGRAPH THREE OF this [subparagraph] PARAGRAPH, the court shall set forth the factors it considered and the reasons for its decision IN WRITING. Such written [order] DECISION may not be waived by either party or counsel.
[(3)] E. Notwithstanding the provisions of this [paragraph] SUBDIVI- SION, where the guideline amount of temporary maintenance would reduce the payor's income below the self-support reserve for a single person, [the presumptive amount of] the guideline amount of temporary mainte- nance 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 is a rebuttable presumption that no temporary maintenance is awarded. [d.] F. The court shall determine the [guideline] duration of tempo- rary maintenance by considering the length of the marriage. G. Temporary maintenance shall terminate upon the issuance of the [final award] DETERMINATION of POST-DIVORCE maintenance or the death of either party, whichever occurs first. [e.] H. (1) The court shall order the [presumptive award] GUIDELINE AMOUNT of temporary maintenance in accordance with paragraphs c and d of this subdivision, unless the court finds that the [presumptive award] GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE is unjust or inappropriate and adjusts the [presumptive award] GUIDELINE AMOUNT of temporary mainte- nance 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)] (B) the PRESENT OR FUTURE earning capacity of the parties, INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE; [(d)] (C) the need of one party to incur education or training expenses; [(e)] (D) the wasteful dissipation of marital property[; (f) the transfer], INCLUDING TRANSFERS or [encumbrance] ENCUMBRANCES made in contemplation of a matrimonial action without fair consider- ation; [(g)] (E) the existence and duration of a pre-marital joint household or a pre-divorce separate household; [(h)] (F) 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)] (G) the availability and cost of medical insurance for the parties; [(j)] (H) the care of [the] children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws PROVIDED DURING THE MARRIAGE that [has inhibited or continues to inhibit] INHIBITS 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)] (I) the need to pay for exceptional additional expenses for the child or children NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT TO THE CHILD SUPPORT STANDARDS ACT, including, but not limited to, schooling, day care and medical treatment; [(m)] (J) the tax consequences to each party; (K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE MARRIAGE; [(n) marital property subject to distribution pursuant to subdivision five of this part; (o)] (L) the reduced or lost earning capacity of the [party seeking temporary maintenance] PAYEE as a result of having foregone or delayed
education, training, employment or career opportunities during the marriage; [(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)] (M) any other factor which the court shall expressly find to be just and proper. (2) Where the court finds that the [presumptive award] GUIDELINE AMOUNT of temporary maintenance is unjust or inappropriate and the court adjusts the [presumptive award] GUIDELINE AMOUNT of temporary mainte- nance pursuant to this paragraph, the court shall set forth, in a writ- ten [order] DECISION, the [amount of the unadjusted presumptive award] GUIDELINE AMOUNT of temporary maintenance, the factors it considered, and the reasons that the court adjusted the [presumptive award] GUIDE- LINE AMOUNT of temporary maintenance. Such written [order] DECISION 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 [have been informed] of the [presumptive award] GUIDELINE AMOUNT of temporary maintenance. [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 stipu- lation which deviates from the presumptive award of temporary mainte- nance shall set forth the court's reasons for such deviation. g.] I. 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 commence- ment of the divorce action, whichever is greater. Such order may be retroactively modified upward without a showing of change in circum- stances upon a showing of newly discovered or obtained evidence. [h.] J. In any action or proceeding for modification of an order of maintenance or alimony existing 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. [i. 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 this subdivision.]
K. THE COURT MAY ALLOCATE THE RESPONSIBILITIES OF THE RESPECTIVE SPOUSES FOR THE FAMILY'S EXPENSES DURING THE PENDENCY OF THE PROCEEDING. L. THE TEMPORARY MAINTENANCE ORDER SHALL NOT PREJUDICE THE RIGHTS OF EITHER PARTY REGARDING A POST-DIVORCE MAINTENANCE AWARD. S 2. 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 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; (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]
SHALL MAKE ITS AWARD FOR POST-DIVORCE MAINTENANCE 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. 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. 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.] 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: (I) 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, EXCEPT THAT TEMPORARY MAINTENANCE PAID PURSUANT TO SUBDIVISION FIVE-A OF THIS PART AND SPOUSAL SUPPORT PAID PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT ACT, SHALL NOT BE DEDUCTED FROM PAYOR'S INCOME; AND (II) INCOME FROM INCOME-PRODUCING PROPERTY DISTRIBUTED OR TO BE DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART. (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU- ARY THIRTY-FIRST, TWO THOUSAND FOURTEEN AND EVERY TWO YEARS THEREAFTER, THE INCOME CAP AMOUNT SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNU- AL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUM- ERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU OF LABOR STATISTICS FOR THE TWO YEAR PERIOD 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 E 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 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. C. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTE- NANCE AS FOLLOWS: (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 POST-DIVORCE MAINTENANCE SHALL BE THE AMOUNT DETERMINED 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 POST-DIVORCE MAINTENANCE SHALL BE ZERO DOLLARS. (6) 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 IS A REBUTTABLE PRESUMPTION THAT NO POST-DIVORCE MAINTENANCE IS AWARDED. D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AS FOLLOWS: (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA- GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL INCOMES OF PAYOR AND PAYEE. (2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA- GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE. (3) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE EITHER: (A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH; OR (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH F OF THIS SUBDIVISION. (4) IN ANY DECISION MADE PURSUANT TO CLAUSE (B) OF SUBPARAGRAPH THREE OF THIS PARAGRAPH, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN DECISION MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL. E. THE GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE SHALL BE DETER- MINED AS FOLLOWS: (1) THE COURT SHALL DETERMINE THE GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE: LENGTH OF THE MARRIAGE % OF THE LENGTH OF THE MARRIAGE FOR WHICH MAINTENANCE WILL BE PAYABLE 0 UP TO AND INCLUDING 5 YEARS 30%
MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS 40% MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS 50% MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS 60% MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS 70% MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS 80% MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS 90% MORE THAN 20, UP TO AND INCLUDING 25 YEARS 100% MORE THAN 25 YEARS NONDURATIONAL (2) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH (1) OF THIS PARA- GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE DEATH OF THE PAYOR OR PAYEE. F. (1) THE COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION IN ACCORDANCE WITH PARAGRAPHS C, D AND E OF THIS SUBDIVISION, UNLESS THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE OBLI- GATION IS UNJUST OR INAPPROPRIATE AND ADJUSTS THE POST-DIVORCE MAINTE- NANCE GUIDELINE OBLIGATION ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING FACTORS: (A) THE AGE AND HEALTH OF THE PARTIES; (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE; (C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES; (D) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS OR ENCUMBRANCES MADE IN CONTEMPLATION OF A MATRIMONIAL ACTION WITHOUT FAIR CONSIDERATION; (E) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A PRE-DIVORCE SEPARATE HOUSEHOLD; (F) 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; (G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES; (H) 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; (I) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT TO THE CHILD SUPPORT STANDARDS ACT, INCLUDING, BUT NOT LIMITED TO, SCHOOLING, DAY CARE AND MEDICAL TREATMENT; (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 FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE; (M) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY; (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, THE UNADJUSTED POST-DI- VORCE MAINTENANCE GUIDELINE OBLIGATION, THE FACTORS IT CONSIDERED, AND
THE REASONS THAT THE COURT ADJUSTED THE POST-DIVORCE MAINTENANCE OBLI- GATION. SUCH WRITTEN DECISION SHALL NOT BE WAIVED BY EITHER PARTY OR COUNSEL. 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. A VALIDLY EXECUTED AGREEMENT OR STIPULATION VOLUNTARILY ENTERED INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND THIRTEEN WHICH AMENDED THIS SUBDIVISION PRESENTED TO THE COURT FOR INCORPORATION IN AN ORDER OR JUDGMENT SHALL INCLUDE A PROVISION STATING THAT THE PARTIES HAVE BEEN ADVISED OF THE PROVISIONS OF THIS SUBDIVISION, AND THAT THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION PROVIDED FOR THEREIN WOULD PRESUMPTIVE- LY RESULT IN THE CORRECT AMOUNT OF POST-DIVORCE MAINTENANCE. IN THE EVENT THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION, THE AGREEMENT OR STIPULATION MUST SPECIFY THE AMOUNT THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLI- GATION 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 POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION PROVIDED SUCH AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS SUBDIVISION. ANY COURT ORDER INCORPORATING A VALIDLY EXECUTED AGREEMENT OR STIPULATION WHICH DEVIATES FROM THE POST-DIVORCE MAINTENANCE GUIDE- LINE OBLIGATION SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION. I. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED WITH INSUFFICIENT EVIDENCE TO DETERMINE 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 NEWLY DISCOVERED OR OBTAINED 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 A CHAPTER OF THE LAWS OF TWO THOUSAND THIRTEEN WHICH AMENDED THIS SUBDIVISION, BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN- TENANCE 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 OF AN ORDER OF MAINTE- NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF A CHAPTER OF THE LAWS OF TWO THOUSAND THIRTEEN WHICH AMENDED THIS SUBDIVISION, BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN- TENANCE SET FORTH IN PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL APPLY. M. 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 F OF THIS SUBDIVISION. S 3. 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 as to maintenance, upon a showing of the [recipient's] PAYEE'S inability to be self-supporting [or a substantial change in circumstance or], THE termination of child support awarded pursuant to section two hundred forty of this article, OR A SUBSTANTIAL CHANGE IN CIRCUMSTANCES including financial hardship, REMARRIAGE OF THE PAYEE IF THE REMARRIAGE RESULTS IN A SUBSTANTIAL CHANGE IN FINANCIAL CIRCUMSTANCES, AND ACTUAL 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 agreement remains in force no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the judgment or order as modified shall supersede the terms of the prior agreement and judg- ment for such period of time and under such circumstances as the court determines. The court shall not reduce or annul any arrears of mainte- nance 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 circumstances constituting good cause are set forth in a written memorandum of decision. Such modification may increase mainte- nance nunc pro tunc as of the date of application based on newly discov- ered evidence. Any retroactive 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 4. 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. A. 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 the court may deter- mine, having due regard to the circumstances of the respective parties.] EXCEPT WHERE THE PARTIES HAVE ENTERED INTO AN AGREEMENT PURSUANT TO SECTION FOUR HUNDRED TWENTY-FIVE OF THIS ARTICLE PROVIDING FOR SUPPORT, THE COURT SHALL MAKE ITS AWARD FOR SPOUSAL SUPPORT PURSUANT TO THE PROVISIONS OF THIS PART. B. FOR PURPOSES OF THIS SECTION, 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 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 PART. (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU- ARY THIRTY-FIRST, TWO THOUSAND FOURTEEN AND EVERY TWO YEARS THEREAFTER, THE INCOME CAP AMOUNT SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNU- AL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUM- ERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE NEAREST ONE
THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND PUBLISH THE INCOME CAP. (5) "GUIDELINE AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED BY THE APPLICATION OF SUBDIVISION C OR D OF THIS SECTION. (6) "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 PART. C. 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: (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 PARAGRAPH TWO OF THIS SUBDIVISION. (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY PARA- GRAPHS ONE AND THREE OF THIS SUBDIVISION. (5) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER- MINED BY PARAGRAPH FOUR OF THIS SUBDIVISION EXCEPT THAT, IF THE AMOUNT DETERMINED BY PARAGRAPH FOUR OF THIS SUBDIVISION IS LESS THAN OR EQUAL TO ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS. D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS: (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS ONE THROUGH FOUR OF SUBDIVISION C OF THIS SECTION FOR THE TOTAL INCOMES OF PAYOR AND PAYEE. (2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS ONE THROUGH FOUR OF SUBDIVISION C OF THIS SECTION FOR THE INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE. (3) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE EITHER: (A) THE CALCULATION DERIVED FROM PARAGRAPH ONE OF THIS SUBDIVISION; OR (B) THE AMOUNT DERIVED FROM PARAGRAPH TWO OF THIS SUBDIVISION PLUS AN AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS SET FORTH IN PARAGRAPH ONE OF SUBDIVISION F OF THIS SECTION. (4) IN ANY DECISION MADE PURSUANT TO SUBPARAGRAPH (B) OF PARAGRAPH THREE OF THIS SUBDIVISION, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN DECISION MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL. E. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WHERE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT WOULD REDUCE THE PAYOR'S INCOME BELOW THE 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 IS A REBUTTABLE PRESUMPTION THAT NO SPOUSAL SUPPORT IS AWARDED. F. (1) THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT IN ACCORDANCE WITH SUBDIVISIONS C AND D OF THIS SECTION, UNLESS THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT IS UNJUST OR INAPPROPRIATE AND ADJUSTS THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING FACTORS: (A) THE AGE AND HEALTH OF THE PARTIES; (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE; (C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
(D) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS OR ENCUMBRANCES MADE IN CONTEMPLATION OF A SUPPORT PROCEEDING WITHOUT FAIR CONSIDERATION; (E) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A PRE-SUPPORT PROCEEDINGS SEPARATE HOUSEHOLD; (F) 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; (G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES; (H) 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; (I) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT TO THE CHILD SUPPORT STANDARDS ACT, INCLUDING, BUT NOT LIMITED TO, SCHOOLING, DAY CARE AND MEDICAL TREATMENT; (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 FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE; (M) 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 (N) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST AND PROPER. (2) 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, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT, THE FACTORS IT CONSIDERED, AND THE REASONS THAT THE COURT ADJUSTED THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT. SUCH WRITTEN DECISION SHALL NOT BE WAIVED BY EITHER PARTY OR COUNSEL. (3) 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. G. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER THE SPOUSAL SUPPORT AWARD BASED UPON THE NEEDS OF THE PAYEE OR THE STAN- DARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE SPOUSAL SUPPORT PROCEEDING, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROAC- TIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE. H. 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 THIRTEEN 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. S 5. 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 valid or invalid marriage,] or upon modification pursuant to paragraph (b) of subdivision nine of section two hundred thirty-six of this part [or section two hundred forty-eight of this chapter]. S 6. 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, 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 7. Section 248 of the domestic relations law is REPEALED. S 8. This act shall take effect on the sixtieth day after it shall have become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Discuss!

blog comments powered by Disqus