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Recent Legislation

Recent Family Law Legislation

By Natasha Meyers

September 25, 205 - Amendments to the Domestic Relations Law and the Family Court Act

Due to Bill A-7645-2015, numerous key changes have been made to how the Courts establish temporary maintenance and spousal maintenance (alimony). The temporary maintenance provision will go into effect October 25, 2015. The remaining provisions will go into effect January 23, 2016. The following changes have been made:

  • The cap on both temporary maintenance and spousal maintenance has been lowered to $175,000 from $543,000.
  • Spousal maintenance will now be calculated first and child custody orders will reflect any payments and burdens resulting from the maintenance orders.
  • New formulas will be used to calculate spousal maintenance:
    • When the maintenance payor is a custodial parent: (a) subtract 20% of the maintenance payee's income from 30% of the maintenance payor's income; (b) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (c) the lower of the two amounts will be the guideline amount of maintenance."
    • When the maintenance payor is a non-custodial parent: "(a) subtract 25% of the maintenance payee's income from 20% of the maintenance payor's income; (b) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (c) the lower of the two amounts will be the guideline amount of maintenance."
  • The Courts will now be able to adjust the awarded maintenance to anywhere under the cap. Factors that inform or influence the maintenance orders must be a matter of written record.
  • Before a divorce is final, the Courts can now divide and assign household financial responsibilities between the two spouses.
  • Income that is generated by income-producing property included in the property division will now be factored into spousal maintenance orders.
  • New factors that can be considered for spousal support: "termination of child support," "income or imputed income on assets being equitably distributed," etc.
  • A new advisory schedule will be implemented to help determine the duration of spousal maintenance:
    • Zero to 15 years of marriage: length of maintenance will be between 15 to 30 percent of the length of the marriage.
    • 16 to 20 years of marriage: length of maintenance will be between 30 to 40 percent the length of the marriage.
    • More than 20 years of marriage: length of maintenance will be between 35 to 50 percent the length of the marriage.
  • Anticipated retirement assets, benefits, and retirement eligibility will now be factored into spousal maintenance duration decisions.
  • Retirement (or partial retirement) that results in a significant decrease in income can now be grounds for a spousal support modification order.
  • There will no longer be considerations for "enhanced earning capacity" in the cases where one spouse earned a professional degree during the course of the marriage.
  • Considerations for modifying annulment and divorce orders, as detailed in N.Y. DOM. LAW § 248, will now be gender neutral.
  • The child support formulas detailed above (in the third point), along with the $175,000 cap will now be addressed in Family Court, as well. The Courts have the power to adjust these awards when the guidelines provide a scenario it considers unjust. When the income of one spouse is more than the cap, the Courts can order additional awards, provided that it gives written reasons for doing so.
  • "Termination of child support" can now be a factor in both spousal maintenance and temporary maintenance awards.
  • Family Court can now modify a spousal support order if a substantial change in the couple's circumstances is presented. Additionally, no-fault divorce maintenance payors can terminate spousal support by stating that "the relationship between the parties has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath."

Domestic Relations Law
To see this article in The Suffolk Lawyer March 2011 Edition, click here.

There were many recent changes to the Domestic Relations Law in 2010. Significant changes were made to Domestic Relations Law §236(B)(5-a) that will have an impact to both the payor and receiver of spousal support. Although set forth in the statute, the new requirements and guidelines seem to pose more questions than they provide answers for. Some scholars have referred to the new spousal support guidelines and the new spousal support formula as an attempt to distribute wealth between the divorcing parties. In the same year, the legislature also passed “No Fault” divorce in New York, allowing a party seeking a divorce the ability to proceed without alleging fault based grounds as set forth in Domestic Relations Law §170.

Although Domestic Relations Law §170(7) sets forth that a party may allege, under oath, that the marriage has been irretrievable broken down for a period of more than six months, recent decisions have directed a trial on the issue of grounds and I am sure we will see a decision from the Appellate Division shortly.

Child Support Modification
The Family Court Act §451 and the Domestic Relations Law §236(B)(9)(b) were amended effective October 13, 2010. As we are well familiar, prior to this amendment, the threshold to modify a court order of support which was incorporated, and not merged into a judgment, required a showing of an “unanticipated and unreasonable change of circumstances since the entry of the order resulting in financial hardship or insufficient resources to meet the needs of the child.” Boden v. Boden, 42 N.Y.2d 210, 366 N.E.2d 791 (1977). Now, without explicitly overruling the long and well-established principal of law in this jurisdiction, the New York State Legislature modified the Domestic Relations Law §236(B)(9)(b) and the Family Court Act §451(2) permitting that the court may modify an order of child support, including an order that has been incorporated into an agreement or stipulation of the parties, upon a showing of substantial change in circumstances.” N.Y. Dom. Rel. L. §236(B)(9)(b) (2011); N.Y. Fam. Ct. Act. §451(2) (2011).

As a result of this amendment, the court may “modify an order of child support where (a) three years have passed since the order was entered, last modified or adjusted or (b) there has been a change in either party’s gross income by 15 percent or more since the order was entered, last modified or adjusted. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience.” Id. There have been a lot of questions raised, and I suspect will continue to be raised until addressed by the New York Court of Appeals, due to the passage of this amendment. For one, what happened to the well-established and it seems until recently, controlling legal standard to modify support orders as set forth in Boden v. Boden, 42 N.Y.2d 210, 366 N.E.2d 791 (1977) and Brescia v. Fitts, 56 N.Y.2d 132, 436 N.E.2d 518 (1982)? What is certain is the parties may “opt out” of the new amendment in a validly executed written agreement or stipulation. In addition, this amendment applies to modifications of child support orders, incorporated agreement or stipulations executed or entered on or after the effective date.

Counsel Fees
Effective October 12, 2010, the Domestic Relations Law §237 and §238 were amended. In accordance with recent case law, this amendment requires “the Court in a matrimonial case or proceeding to enforce a judgment therein, involving the parties with greatly unequal financial resources, to order the monied party to pay counsel fees for the non monied party during the course of the case so as to enable her or him to defend it.” See New York State Senate Introducer’s Memorandum in Support submitted in accordance with Senate Rule VI. Sec 1. Bill Number S4532 A Revised 06/14/10. The new amendment does not mandate the payment of fees, but rather sets forth that there “shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse”. In addition, this amendment is consistent with recent cases, such as Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667 (2d Dep’t 2008), that support and reason that such awards are to be “awarded on a timely basis, pendente lite.” There are also new, required forms that are to be provided to the court when seeking counsel fees so as to enable the court to make its determination. An affidavit and affirmation are to set forth the amount of monies received by the attorney under the Retainer Agreement as well as the requested fees and expenses and need for same.

Divorce - No Fault
Effective October 12, 2010, the Domestic Relations Law §170 was amended to provide an additional ground a party may allege when seeking a divorce rather than being relegated to use the other fault based grounds. The New York State legislature enacted the Domestic Relations Law §170(7) as follows: “An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following ground… (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert’s fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.” N.Y. Dom. Rel. L. §170 (2011).

It is noteworthy that there are no statutory defenses set forth. New York was indeed the last state to have “No Fault” divorce. I have read the legislative intent and one justification for the “No Fault” bill, amongst others, was to “lessen the disputes that often arise between the parties and to mitigate the potential harm to them and their children caused by the current process.” See New York State Senate Introducer’s Memorandum in Support submitted in accordance with Senate Rule VI. Sec 1. Bill Number S3890A. But does New York indeed have “No Fault” Divorce even after the enactment of Domestic Relations Law §170(7)? Based on the following recent Supreme Court cases, the New York Court of Appeals will inevitably be called upon to answer that question. I recently came across some interesting articles worth discussing. Essex County Supreme Court Justice Robert J. Muller, in a divorce case, Strack v. Strack, “scheduled for an immediate trial to determine whether a 47 year marriage has irretrievable broken down.” Daniel Wise, Court Orders Trial to Consider State of Marriage Under No-Fault, N.Y.L.J., February 4, 2011 at 1. The article quoted former Justice Sondra Miller of the Appellate Division Second Department stating “it is quite clear that the purpose of the language referring to an oath provided by one party was to avoid litigation.” Id. at 6. She further stated “it was not the intention of the Legislature and the bill’s sponsors to avoid litigation on fault grounds only to substitute litigation upon the ground of irretrievable beakdown.” Id.

In addition, in what appears to be a case of first impression, Supreme Court Justice, Eric I. Prus, in Stroffolino v. Stroffolino, has required a grounds trial in an action where the “No Fault” ground was alleged. Id. That case was appealed to the Appellate Division Second Department. My review of the Domestic Relations Law §170(7) begs the question why a grounds trial would be needed in either of those cases, and on what legal principal the court referred the matters to a trial on the issue of grounds. Closer to home, a Justice Anthony Falanga, Justice of the Nassau County Supreme Court allowed the wife to bring her own action seeking a divorce alleging the newly enacted “No Fault” ground set forth in Domestic Relations Law §170(7) despite the fact that her husband brought his action seeking a divorce on fault based grounds prior to October 12, 2010. Andrew Keshner, Judge Allows Wife’s No-Fault Claim in Existing Divorce Action, N.Y.L.J., February 1, 2011 at 1. The court denied the husband’s motion to consolidate the two actions but rather granted a joint trial. As the matter was not consolidated, the wife, in her action, may benefit from the newly enacted changes to Domestic Relations Law §236 B)(5-a). Id. That, too, remains to be seen.

Temporary Maintenance Guidelines
Effective October 12, 2010, the Domestic Relations Law §236(B)(5-a) was amended. The New York legislature set forth a formula to be used by courts when determining what the “presumptive award” of temporary spousal support should be. One of the purposes in creating a formula was to address the unpredictable maintenance awards from court to court and to curtail inconsistent awards. Under the new amendments to the Domestic Relations Law, a numeric formula is to be utilized when determining temporary spousal support based on the payor’s annual income up to $500,000.00. There are also additional factors to consider when the payor’s annual income is above $500,000.00. The formula is as follows: It is important to note that these new maintenance guidelines are applicable to all matrimonial actions commenced on or after the effective date, October 12, 2010, and the statute clearly states that the new amendment does not constitute a “change of circumstances” for modification of orders relating to maintenance which were issued prior to October 12, 2010.

The new maintenance legislation sets forth the presumptive award of temporary pendente lite maintenance that must be awarded by the court unless the court determines that it would be “unjust or inappropriate” to award the presumptive award upon consideration of the factors set forth in paragraph “e(1)” Paragraph “e(1)” of the new subdivision permits the court to order an award of temporary maintenance less than the presumptively correct award derived by using the new formula if the court makes a finding that the presumptive amount awarded is “unjust or inappropriate.”

Similar to the statutory requirement and required language a court is to set forth when awarding child support pursuant to the Child Support Standards Act, or when deviating therefrom, if the court finds that the presumptive award of temporary maintenance is unjust or inappropriate and the court adjusts the presumptive award higher or lower, the court must set forth in its written decision: (1) the amount of the unadjusted presumptive award of temporary maintenance; (2) the factors the court considered; and (3) the reasons the court adjusted the presumptive award. This new requirement cannot be waived by counsel or the parties. From a practical prospective, the parties have to be able to show income of both parties (from all sources) at this stage of the litigation, which as we practitioners know, is not always easy. Analogous to the “opt out” requirement as set forth in the Child Support Standards Act, the court and the parties, may “opt out” of the new temporary maintenance guidelines, provided however, that the parties execute a valid executed agreement or stipulation that includes a provision that the parties have been advised of the new subdivision and that the presumptive award of temporary maintenance provides the correct amount of temporary maintenance to be awarded under the formula. To the extent the amount set forth in the agreement or order deviates from the presumptively correct award of temporary maintenance, the agreement or stipulation must set forth what the presumptive award of temporary maintenance would have been and the reason or reasons for such deviation.

In a recent case, Brooklyn Supreme Court Justice Sunshine applied “a deviation authorized in the statute by reducing the husband’s maintenance obligation by one third.” Daniel Wise, Judge Deviates From Formula Under New Divorce Laws, N.Y.L.J., January 25, 2011 at 1. “In approving the one-third reduction from the $37,000 yielded by the statutory formula, Justice Sunshine looked to two factors, the parties’ pre-divorce situation and the existence of substantial child support obligations.” Id. The court reduced the husband’s maintenance obligation to meet his “pre-divorce household expenses and take into account the parties expenses, child care costs and net available resources.” Id. In addition, although the newly enacted Domestic Relations Law §237 creates a rebuttable presumption “that counsel fees should be awarded to the less monied spouse,” the court stated “that presumption is rebutted by operation of child support and interim maintenance requirements.” Id. In denying the wife counsel fees, the court stated it “cannot decide that just because one party earns more than the other they automatically become the monied spouse.” Id.

The new factors to be considered by the Court, or the parties, as the case may be, when awarding or deviating from the presumptive award of temporary pendente lite maintenance on annual income up to $500,000.00 are as follows, with the new additional factors highlighted in bold:

  1. standard of living of the parties established during the marriage;
  2. age and health of the parties;
  3. earning capacity of the parties;
  4. need of one party to incur education or training expenses;
  5. wasteful dissipation of marital property;
  6. transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
  7. existence and duration of a premarital joint household or a predivorce separate household;
  8. 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 §459-a of the Social Services Law;
  9. availability and cost of medical insurance for the parties;
  10. care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;
  11. inability of one party to obtain meaningful employment due to age or absence from the workforce;
  12. need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
  13. tax consequences to each party;
  14. marital property subject to distribution pursuant to subdivision five of this part;
  15. reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
  16. 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
  17. any other factor which the court shall expressly find to be just and proper.

When the payor’s income exceeds the $500,000.00 cap, there are additional guidelines set forth for the court to consider when determining an award of temporary pendente lite maintenance.

I find it interesting that the legislature left out the length of the marriage (factor 1 below) and the substantial differences in the incomes of the parties (factor 2) when determining whether to opt out or deviate from the formula when the income is $500,000.00 or less. The factors are as follows:

  1. length of the marriage;
  2. substantial differences in the incomes of the parties;
  3. standard of living of the parties established during the marriage;
  4. age and health of the parties;
  5. earning capacity of the parties;
  6. need of one party to incur education or training expenses;
  7. wasteful dissipation of marital property;
  8. transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
  9. existence and duration of a pre-marital joint household or a pre-divorce separate household;
  10. 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 §459-a of the Social Services Law;
  11. availability and cost of medical insurance for the parties;
  12. care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;
  13. inability of one party to obtain meaningful employment due to age or absence from the workforce;
  14. need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
  15. tax consequences to each party;
  16. marital property subject to distribution pursuant to subdivision five of this part;
  17. reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
  18. 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
  19. any other factor which the court shall expressly find to be just and proper.

The name of the statute has been renamed; Domestic Relations Law §236(B) is now entitled Post Divorce Maintenance Awards.

The amendment has also added new, additional factors to be considered by the court, or the parties as the case may be, when awarding permanent maintenance. The factors are as follows:

  1. income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
  2. length of the marriage;
  3. age and health of both parties;
  4. present and future earning capacity of both parties;
  5. need of one party to incur education or training expenses;
  6. existence and duration of a premarital 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 §459-a of the Social Services Law;
  8. ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefore;
  9. reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
  10. availability and cost of medical insurance for the parties;
  11. presence of children of the marriage in the respective homes of the parties;
  12. care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;
  13. need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
  14. tax consequences to each party;
  15. equitable distribution of marital property;
  16. 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;
  17. wasteful dissipation of marital property by either spouse;
  18. transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
  19. 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.

Last, pursuant to subdivision 6-a, it is now required that the Law Revision Commission study the current maintenance in New York and have a final report and recommendations to the legislature and governor by December 31, 2011. The scope of the study is to 1) review and assess the economic consequences of divorce on the parties; 2) review the maintenance laws of the state, including the ways in which they are administered, to determine the impact of the laws on post marital economic disparities; and manner in which the state’s policy goals ensure that economic consequences of a divorce are fairly and equitably shared by the divorcing couple and 3) to make recommendations to the legislature. A preliminary report is due April 13, 2011.

Orders of Protection
Effective August 13, 2010, various provisions of the Family Court Act and the Domestic Relations Law were amended to apply to all order of protection pending or entered on or after the effective date. With the new amendment to the Family Court Act §812(1), the court “shall not deny an order or protection or dismiss an application for such an order, solely on the basis that the acts or events are not relatively contemporaneous with the date of the application or the conclusion of the action. The duration of any temporary order shall not by itself be a factor in determining the length of any final order.” N.Y. Fam. Ct. Act §812(1) (2011). In a recent case, Jose M. v. Tatianna T., the court had an opportunity to consider the newly enacted Family Court Act §812 to determine if the allegations in the petition were stale as they were brought years prior. Time Lapse Dooms Husband’s Petition Against Allegedly Abusive Wife, N.Y.L.J., January 24, 2011 at 1.

The court noted that the allegations in the petition were 3 and 5 years old when the petition was filed. Id. The court reasoned “that each allegation had to be evaluated to determine if the delay in filing would prevent the purposes of the act from being carried out, including stopping domestic violence, end family disruption and obtain protection.” Id. In this case, the court found that “the passage of time prevented all of those purposes from being accomplished.” The court dismissed the petition reasoning that “the lapse of time supported the dismissal and that it was not based solely on the fact that the allegations were not “relatively contemporaneous”. Id. Adoption Effective September 17, 2010, the Domestic Relations Law §110 was amended to “permit two adult unmarried intimate partners to adopt a child together.” N.Y. Dom. Rel. §110 (2011). The recent amendment eliminates the references to a husband and wife and replaces it with the term “a married couple.” Automatic Orders Effective March 30, 2010 and retroactive to September 1, 2009, the Domestic Relations Law §236(2)(b)(2) clarified that a party in pay status of their pension payments may continue to receive those payments.

Note: Natasha Meyers, Esq., concentrates in Matrimonial and Family Law. She is the managing partner of The Meyers Law Group, P.C. with offices in Huntington and can be reached at (631) 784-7722.