Bill S7740A-2009

Relates to interim spousal support and post-marital income obligations; repealer

Relates to interim spousal support and post-marital income obligations.

Details

Actions

  • Jun 15, 2010: referred to judiciary
  • Jun 15, 2010: DELIVERED TO ASSEMBLY
  • Jun 15, 2010: PASSED SENATE
  • Jun 3, 2010: AMENDED ON THIRD READING 7740A
  • May 25, 2010: ADVANCED TO THIRD READING
  • May 24, 2010: 2ND REPORT CAL.
  • May 18, 2010: 1ST REPORT CAL.575
  • May 5, 2010: REFERRED TO JUDICIARY

Votes

Memo

BILL NUMBER:S7740A              REVISED 06/04/10

TITLE OF BILL: An act to amend the domestic relations law, in relation to interim spousal support and post-marital income obligations; and to repeal certain provisions of such law relating thereto

PURPOSE OR GENERAL IDEA OF BILL: To provide predictability and consistency with regard to calculating interim spousal support (formerly "temporary maintenance") and post-marital income obligations (formerly "maintenance").

JUSTIFICATION: Under existing law, awards of maintenance differ widely for couples with similar incomes and similar length of marriage. This lack of consistency and predictability in maintenance awards undermines confidence in the judicial system and encourages costly litigation by impeding the settling of cases. By establishing guidelines for the amount and duration of the award, post-marital income guidelines provide the consistency and predictability for spousal support that the Child Support Standards Act has provided for child support.

Most families do not have substantial assets to divide upon the dissolution of a marriage-the greatest asset of the marriage is frequently the income of the more-monied spouse. The less-monied spouse often invests time and energy supporting his or her spouse's career, raising the children, and taking care of the home. Current law fails to provide adequate guidance as to how to divide the asset of future earned income in an equitable manner.

Post-marital income guidelines only result in an award when there is an income gap between the two parties such that the less-monied spouse's income is less than two thirds of the more-monied spouse's income. For instance, if the payor's annual income is $90,000 a year, the guidelines will only result in an award if the payee's annual income is less than $60,000.

The guidelines provide protections for payors at both ends of the income spectrum. The formula is only applied to the payor's income up to $500,000. The guidelines also include a rebuttable presumption that individuals whose annual income is less than the self-support reserve (135% of the Federal poverty Guidelines) do not have the financial means to make a maintenance payment.

Guideline Duration: To determine the guideline amount, the court must compare 2 calculations of the spouses' annual incomes. For both of these

calculations, any income of the payor's that exceeds $500,000 is not included.

o 30% of the payor's income minus 20% of the payee's income, OR

o 40% of the combined income of the two spouses. The payee's income is then subtracted from this figure.

The court must select the lesser of these two figures as the guideline amount. If the payor has an annual income exceeding $500,000, the judge may adjust the amount.

Guideline Duration: To determine the guideline duration, the court applies a percentage to the length of the marriage. For every additional 3 - 5 years of the marriage, the duration of the award increases by 10%.

o If the marriage lasts 0 to 5 years, the length of award is 30% of the marriage. o If the marriage lasts 20 to 25 years, the length of award is 100% of the marriage. o If the marriage lasts more than 25 years, the length of award is permanent. Under current law, the court has discretion to award maintenance for life.

The guidelines maintain judicial discretion. If the court finds the presumptive award (the guideline amount or guideline duration) to be "unjust or improper," the court has discretion to apply the deviation factors listed and "any other factor" the court chooses to adjust the presumed award.

As with current law, the guidelines permit either party to apply to the court to annul or modify any prior maintenance awards upon a showing of a substantial change in circumstances, including financial hardship for the payor or payee.

New York needs a new approach consistent with Chief Judge Judith Kaye's call in her 2006 State of the Judiciary address for a "cultural revolution" to reduce the time and the costs, both financial and emotional, of matrimonial cases. More information regarding the probable amount and duration of post-marital income awards will encourage spouses to settle alleviating some of the burden on overworked courts and helping couples avoid any litigation.

FISCAL IMPLICATION: None to the state.

EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date.


Text

STATE OF NEW YORK ________________________________________________________________________ S. 7740--A A. 10984--A Cal. No. 575 S E N A T E - A S S E M B L Y May 5, 2010 ___________
IN SENATE -- Introduced by Sens. HASSELL-THOMPSON, ADAMS, BRESLIN, HUNT- LEY, KRUEGER, MONTGOMERY, OPPENHEIMER, PERKINS, SAMPSON, SAVINO, SCHNEIDERMAN, SQUADRON, STAVISKY, STEWART-COUSINS -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading IN ASSEMBLY -- Introduced by M. of A. PAULIN -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the domestic relations law, in relation to interim spousal support and post-marital income obligations; and to repeal certain provisions of such law relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 6 of part B of section 236 of the domestic relations law is REPEALED and a new subdivision 6 is added to read as follows: 6. INTERIM SPOUSAL SUPPORT AND POST-MARITAL INCOME. A. EXCEPT WHERE THE PARTIES HAVE ENTERED INTO AN AGREEMENT PURSUANT TO SUBDIVISION THREE OF THIS PART PROVIDING FOR ALIMONY, MAINTENANCE OR POST-MARITAL INCOME, IN ANY MATRIMONIAL ACTION THE COURT MAY ORDER INTERIM SPOUSAL SUPPORT 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 INTERIM SPOUSAL SUPPORT IS GRANTED LACKS SUFFICIENT PROP- ERTY AND INCOME TO PROVIDE FOR HIS OR HER REASONABLE NEEDS, WHETHER THE OTHER PARTY HAS SUFFICIENT PROPERTY OR INCOME TO PROVIDE FOR THE REASON- ABLE 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 INTERIM SPOUSAL SUPPORT DUE SHALL BE PAID IN ONE SUM OR PERIODIC SUMS, AS THE COURT SHALL DIRECT.
B. (1) EXCEPT WHERE THE PARTIES HAVE ENTERED INTO AN AGREEMENT PURSU- ANT TO SUBDIVISION THREE OF THIS PART PROVIDING FOR ALIMONY, MAINTENANCE OR POST-MARITAL INCOME, THE COURT SHALL MAKE ITS AWARD FOR POST-MARITAL INCOME PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH. (2) FOR PURPOSES OF THIS SUBDIVISION, 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) "LENGTH OF MARRIAGE" SHALL MEAN THE PERIOD FROM THE DATE OF MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION. (D) "INCOME" SHALL MEAN: (I) ALL FORMS OF 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; (II) INCOME FROM INCOME PRODUCING PROPERTY DISTRIBUTED OR TO BE DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART. (E) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING FIVE HUNDRED THOUSAND DOLLARS OF THE PAYOR'S ANNUAL INCOME. THE AMOUNT OF FIVE HUNDRED THOU- SAND DOLLARS SHALL INCREASE OR DECREASE ON MARCH FIRST OF EACH YEAR BY ANY CHANGE IN THE COST OF LIVING AS DEFINED IN THE ANNUAL CONSUMER PRICE INDEX-ALL URBAN CONSUMERS, NEW YORK, NEW YORK-NORTHEASTERN NEW JERSEY, AS PUBLISHED BY THE BUREAU OF LABOR STATISTICS OF THE U.S. DEPARTMENT OF LABOR. (F) "GUIDELINE AMOUNT" SHALL MEAN THE SUM DERIVED BY THE APPLICATION OF SUBPARAGRAPH THREE OF THIS PARAGRAPH. (G) "GUIDELINE DURATION" SHALL MEAN THE DURATIONAL PERIOD DETERMINED BY THE APPLICATION OF SUBPARAGRAPH FOUR OF THIS PARAGRAPH. (H) "PRESUMPTIVE AWARD" SHALL MEAN THE GUIDELINE AMOUNT FOR THE GUIDE- LINE DURATION PRIOR TO THE COURT'S APPLICATION OF ANY ADJUSTMENT FACTORS AS PROVIDED IN CLAUSE (A) OF SUBPARAGRAPH FIVE OF THIS PARAGRAPH. (I) "POST-MARITAL INCOME" SHALL MEAN THE SUM TO BE PAID FOR A DESIG- NATED PERIOD OF TIME PURSUANT TO A FINAL COURT ORDER OR DECREE DISSOLV- ING OR ANNULLING A MARRIAGE, DECLARING THE NULLITY OF A MARRIAGE, OR A VALID AGREEMENT BETWEEN THE PARTIES, BY ONE PARTY TO THE OTHER. (J) "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. (3) THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBPARAGRAPH AFTER DETERMINING THE INCOME OF THE PARTIES: (A) WHERE THE PAYOR'S INCOME IS UP TO AND INCLUDING THE INCOME CAP: (I) 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. (II) 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. (III) THE COURT SHALL SUBTRACT THE INCOME OF THE PAYEE FROM THE AMOUNT DERIVED FROM SUBCLAUSE (II) OF THIS CLAUSE. (IV) THE GUIDELINE AMOUNT SHALL BE THE LOWER OF THE AMOUNTS DETERMINED BY SUBCLAUSES (I) AND (III) OF THIS CLAUSE; IF THE AMOUNT DETERMINED BY SUBCLAUSE (III) OF THIS CLAUSE IS LESS THAN OR EQUAL TO ZERO, THE GUIDE- LINE AMOUNT SHALL BE ZERO DOLLARS. (B) WHERE THE INCOME OF THE PAYOR EXCEEDS THE INCOME CAP: (I) THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT FOR THAT PORTION OF THE PAYOR'S INCOME THAT IS UP TO AND INCLUDING THE INCOME CAP ACCORDING
TO CLAUSE (A) OF THIS SUBPARAGRAPH, AND, FOR THE PAYOR'S INCOME IN EXCESS OF THE INCOME CAP, THE COURT SHALL DETERMINE ANY ADDITIONAL GUIDELINE AMOUNT THROUGH CONSIDERATION OF THE FOLLOWING FACTORS: (A) THE LENGTH OF THE MARRIAGE; (B) THE SUBSTANTIAL DIFFERENCES IN THE INCOMES OF THE PARTIES; (C) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE MARRIAGE; (D) THE AGE AND HEALTH OF THE PARTIES; (E) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES; (F) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES; (G) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY; (H) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMONIAL ACTION WITHOUT FAIR CONSIDERATION; (I) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A PRE-DIVORCE SEPARATE HOUSEHOLD; (J) ACTS BY ONE PARTY AGAINST ANOTHER THAT CONSTITUTE EGREGIOUS FAULT LIKELY TO SHOCK THE CONSCIENCE; (K) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES; (L) 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; (M) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE TO AGE OR ABSENCE FROM THE WORKFORCE; (N) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD/CHILDREN, INCLUDING BUT NOT LIMITED TO, SCHOOLING, DAY CARE AND MEDICAL TREATMENT; (O) THE TAX CONSEQUENCES TO EACH PARTY; (P) THE EQUITABLE DISTRIBUTION OF THE MARITAL PROPERTY; (Q) THE REDUCED OR LOST LIFETIME EARNING CAPACITY OF THE PARTY SEEKING POST-MARITAL INCOME AS A RESULT OF HAVING FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE; (R) THE CONTRIBUTIONS AND SERVICES OF THE PARTY SEEKING POST-MARITAL INCOME AS A SPOUSE, PARENT, WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE OTHER PARTY; AND (S) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST AND PROPER. (II) IN ANY DECISION MADE PURSUANT TO THIS CLAUSE, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED AND THE REASONS FOR ITS DECISION. SUCH WRITTEN ORDER MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL. (C) NOTWITHSTANDING THE PROVISIONS OF THIS SUBPARAGRAPH, WHERE THE GUIDELINE AMOUNT WOULD REDUCE THE PAYOR'S INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE PRESUMPTIVE AMOUNT OF THE GUIDELINE AMOUNT 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-MARITAL INCOME IS AWARDED. (4) (A) THE COURT SHALL DETERMINE THE GUIDELINE DURATION IN ACCORDANCE WITH THE FOLLOWING SCHEDULE: LENGTH OF THE MARRIAGE % OF THE LENGTH OF THE MARRIAGE FOR WHICH POST-MARITAL INCOME 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 PERMANENT (B) NOTWITHSTANDING THE PROVISIONS OF CLAUSE (A) OF THIS SUBPARAGRAPH, POST-MARITAL INCOME SHALL TERMINATE UPON THE DEATH OF EITHER PARTY. (5) (A) THE COURT SHALL ORDER THE PRESUMPTIVE AWARD IN ACCORDANCE WITH SUBPARAGRAPHS THREE AND FOUR OF THIS PARAGRAPH, UNLESS THE COURT FINDS THAT THE PRESUMPTIVE AWARD IS UNJUST OR INAPPROPRIATE AND ADJUSTS THE PRESUMPTIVE AWARD ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING FACTORS: (I) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE MARRIAGE; (II) THE AGE AND HEALTH OF THE PARTIES; (III) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES; (IV) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES; (V) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY; (VI) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMONI- AL ACTION WITHOUT FAIR CONSIDERATION; (VII) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A PRE-DIVORCE SEPARATE HOUSEHOLD; (VIII) ACTS BY ONE PARTY AGAINST ANOTHER THAT CONSTITUTE EGREGIOUS FAULT LIKELY TO SHOCK THE CONSCIENCE; (IX) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES; (X) 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; (XI) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE TO AGE OR ABSENCE FROM THE WORKFORCE; (XII) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD/CHILDREN, INCLUDING BUT NOT LIMITED TO, SCHOOLING, DAY CARE AND MEDICAL TREATMENT; (XIII) THE TAX CONSEQUENCES TO EACH PARTY; (XIV) THE EQUITABLE DISTRIBUTION OF THE MARITAL PROPERTY; (XV) THE REDUCED OR LOST LIFETIME EARNING CAPACITY OF THE PARTY SEEK- ING POST-MARITAL INCOME AS A RESULT OF HAVING FOREGONE OR DELAYED EDUCA- TION, TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE; (XVI) THE CONTRIBUTIONS AND SERVICES OF THE PARTY SEEKING POST-MARITAL INCOME AS A SPOUSE, PARENT, WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE OTHER PARTY; AND (XVII) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST AND PROPER. (B) WHERE THE COURT FINDS THAT THE PRESUMPTIVE AWARD IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE PRESUMPTIVE AWARD PURSUANT TO THIS SUBPARAGRAPH, THE COURT SHALL SET FORTH, IN A WRITTEN ORDER, THE AMOUNT OF THE UNADJUSTED PRESUMPTIVE AWARD, THE FACTORS IT CONSIDERED, AND THE REASONS THAT THE COURT ADJUSTED THE PRESUMPTIVE AWARD. SUCH WRITTEN ORDER SHALL NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
(C) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT ENTER A POST-MARITAL INCOME ORDER OR JUDGMENT UNLESS THE UNREPRE- SENTED PARTY OR PARTIES HAVE BEEN INFORMED OF THE PRESUMPTIVE AWARD. (6) 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 OR JUDGMENT 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 POST-MARITAL INCOME. IN THE EVENT THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE PRESUMPTIVE AWARD, THE AGREEMENT OR STIPULATION MUST SPECIFY THE AMOUNT THAT SUCH PRESUMPTIVE AWARD 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 PROVIDED SUCH AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS PARAGRAPH. THE COURT SHALL, HOWEVER, RETAIN DISCRETION WITH RESPECT TO POST-MARITAL INCOME PURSUANT TO THIS SECTION. ANY COURT ORDER OR JUDGMENT INCORPORATING A VALIDLY EXECUTED AGREEMENT OR STIPULATION WHICH DEVIATES FROM THE PRESUMPTIVE AWARD SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION. (7) IN ADDITION TO FINANCIAL DISCLOSURE REQUIRED IN THIS SECTION, THE COURT MAY REQUIRE THAT THE INCOME AND/OR EXPENSES OF EITHER PARTY BE VERIFIED WITH DOCUMENTATION INCLUDING, BUT NOT LIMITED TO, PAST AND PRESENT INCOME TAX RETURNS, EMPLOYER STATEMENTS, PAY STUBS, CORPORATE, BUSINESS, OR PARTNERSHIP BOOKS AND RECORDS, CORPORATE AND BUSINESS TAX RETURNS, AND RECEIPTS FOR EXPENSES OR SUCH OTHER MEANS OF VERIFICATION AS THE COURT DETERMINES APPROPRIATE. NOTHING HEREIN SHALL AFFECT ANY PARTY'S RIGHT TO PURSUE DISCOVERY PURSUANT TO THIS CHAPTER OR THE CIVIL PRACTICE LAW AND RULES. (8) WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED WITH INSUFFICIENT EVIDENCE TO DETERMINE GROSS INCOME, THE COURT SHALL ORDER THE POST-MARITAL INCOME OBLIGATION 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 RETROACTIVE- LY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE. (9) POST-MARITAL INCOME MAY BE MODIFIED PURSUANT TO PARAGRAPH B OF SUBDIVISION NINE OF THIS SECTION. (10) 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 POST-MARITAL INCOME STAND- ARDS SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER. S 2. This act shall take effect on the sixtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date.

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