Bill Text: NY A06728 | 2013-2014 | General Assembly | Amended
Bill Title: Relates to modification of temporary maintenance awards and maintenance obligations.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Introduced - Dead) 2014-06-02 - enacting clause stricken [A06728 Detail]
Download: New_York-2013-A06728-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
6728--B
2013-2014 Regular Sessions
I N A S S E M B L Y
April 17, 2013
___________
Introduced by M. of A. PAULIN, SEPULVEDA, ROBERTS, JAFFEE -- Multi-Spon-
sored by -- M. of A. GIBSON, GOTTFRIED, PERRY, WEISENBERG -- read
once and referred to the Committee on Judiciary -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported and referred to the Committee on Codes
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
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:
1 Section 1. Subdivision 5-a of part B of section 236 of the domestic
2 relations law, as added by chapter 371 of the laws of 2010, is amended
3 to read as follows:
4 5-a. Temporary maintenance awards. a. Except where the parties have
5 entered into an agreement pursuant to subdivision three of this part
6 providing for maintenance, in any matrimonial action the court shall
7 make its award for temporary maintenance pursuant to the provisions of
8 this subdivision.
9 b. For purposes of this subdivision, the following definitions shall
10 be used:
11 (1) "Payor" shall mean the spouse with the higher income.
12 (2) "Payee" shall mean the spouse with the lower income.
13 (3) "Length of marriage" shall mean the period from the date of
14 marriage until the date of commencement of action.
15 (4) "Income" shall mean[:
16 (a)] income as defined in the child support standards act and codified
17 in section two hundred forty of this article and section four hundred
18 thirteen of the family court act[; and
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09639-11-3
A. 6728--B 2
1 (b) income from income producing property to be distributed pursuant
2 to subdivision five of this part].
3 (5) "Income cap" shall mean up to and including [five] THREE hundred
4 thousand dollars of the payor's annual income; provided, however, begin-
5 ning January thirty-first, two thousand [twelve] FOURTEEN and every two
6 years thereafter, the [payor's annual] income CAP amount shall increase
7 by the product of the average annual percentage changes in the consumer
8 price index for all urban consumers (CPI-U) as published by the United
9 States department of labor bureau of labor statistics for the two year
10 period rounded to the nearest one thousand dollars. The office of court
11 administration shall determine and publish the income cap.
12 (6) "Guideline amount of temporary maintenance" shall mean the [sum]
13 DOLLAR AMOUNT derived by the application of paragraph c OR D of this
14 subdivision.
15 [(7) "Guideline duration" shall mean the durational period determined
16 by the application of paragraph d of this subdivision.
17 (8) "Presumptive award" shall mean the guideline amount of the tempo-
18 rary maintenance award for the guideline duration prior to the court's
19 application of any adjustment factors as provided in subparagraph one of
20 paragraph e of this subdivision.
21 (9)] (7) "Self-support reserve" shall mean the self-support reserve as
22 defined in the child support standards act and codified in section two
23 hundred forty of this article and section four hundred thirteen of the
24 family court act.
25 c. [The court shall determine the guideline amount of temporary main-
26 tenance in accordance with the provisions of this paragraph after deter-
27 mining the income of the parties:
28 (1) Where the payor's income is up to and including the income cap:
29 (a) the court shall subtract twenty percent of the income of the payee
30 from thirty percent of the income up to the income cap of the payor.
31 (b) the court shall then multiply the sum of the payor's income up to
32 and including the income cap and all of the payee's income by forty
33 percent.
34 (c) the court shall subtract the income of the payee from the amount
35 derived from clause (b) of this subparagraph.
36 (d) the guideline amount of temporary maintenance shall be the lower
37 of the amounts determined by clauses (a) and (c) of this subparagraph;
38 if the amount determined by clause (c) of this subparagraph is less than
39 or equal to zero, the guideline amount shall be zero dollars.
40 (2) Where the income of the payor exceeds the income cap:
41 (a) the court shall determine the guideline amount of temporary main-
42 tenance for that portion of the payor's income that is up to and includ-
43 ing the income cap according to subparagraph one of this paragraph, and,
44 for the payor's income in excess of the income cap, the court shall
45 determine any additional guideline amount of temporary maintenance
46 through consideration of the following factors:
47 (i) the length of the marriage;
48 (ii) the substantial differences in the incomes of the parties;
49 (iii) the standard of living of the parties established during the
50 marriage;
51 (iv) the age and health of the parties;
52 (v) the present and future earning capacity of the parties;
53 (vi) the need of one party to incur education or training expenses;
54 (vii) the wasteful dissipation of marital property;
55 (viii) the transfer or encumbrance made in contemplation of a matrimo-
56 nial action without fair consideration;
A. 6728--B 3
1 (ix) the existence and duration of a pre-marital joint household or a
2 pre-divorce separate household;
3 (x) acts by one party against another that have inhibited or continue
4 to inhibit a party's earning capacity or ability to obtain meaningful
5 employment. Such acts include but are not limited to acts of domestic
6 violence as provided in section four hundred fifty-nine-a of the social
7 services law;
8 (xi) the availability and cost of medical insurance for the parties;
9 (xii) the care of the children or stepchildren, disabled adult chil-
10 dren or stepchildren, elderly parents or in-laws that has inhibited or
11 continues to inhibit a party's earning capacity or ability to obtain
12 meaningful employment;
13 (xiii) the inability of one party to obtain meaningful employment due
14 to age or absence from the workforce;
15 (xiv) the need to pay for exceptional additional expenses for the
16 child or children, including, but not limited to, schooling, day care
17 and medical treatment;
18 (xv) the tax consequences to each party;
19 (xvi) marital property subject to distribution pursuant to subdivision
20 five of this part;
21 (xvii) the reduced or lost earning capacity of the party seeking
22 temporary maintenance as a result of having foregone or delayed educa-
23 tion, training, employment or career opportunities during the marriage;
24 (xviii) the contributions and services of the party seeking temporary
25 maintenance as a spouse, parent, wage earner and homemaker and to the
26 career or career potential of the other party; and
27 (xix) any other factor which the court shall expressly find to be just
28 and proper.
29 (b)] WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME
30 CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
31 NANCE AS FOLLOWS:
32 (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
33 THIRTY PERCENT OF THE PAYOR'S INCOME.
34 (2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
35 THE PAYEE'S INCOME BY FORTY PERCENT.
36 (3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
37 DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
38 (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
39 GRAPHS ONE AND THREE OF THIS PARAGRAPH.
40 (5) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE AMOUNT
41 DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF THE
42 AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR
43 EQUAL TO ZERO, THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE
44 ZERO DOLLARS.
45 D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
46 DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE AS FOLLOWS:
47 (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
48 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
49 INCOMES OF PAYOR AND PAYEE.
50 (2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
51 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE
52 INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
53 PAYEE.
54 (3) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE EITHER:
55 (A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
56 OR
A. 6728--B 4
1 (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
2 AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
3 SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH H OF THIS SUBDIVISION.
4 (4) In any decision made pursuant to CLAUSE (B) OF SUBPARAGRAPH THREE
5 OF this [subparagraph] PARAGRAPH, the court shall set forth the factors
6 it considered and the reasons for its decision IN WRITING. Such written
7 [order] DECISION may not be waived by either party or counsel.
8 [(3)] E. Notwithstanding the provisions of this [paragraph] SUBDIVI-
9 SION, where the guideline amount of temporary maintenance would reduce
10 the payor's income below the self-support reserve for a single person,
11 [the presumptive amount of] the guideline amount of temporary mainte-
12 nance shall be the difference between the payor's income and the self-
13 support reserve. If the payor's income is below the self-support
14 reserve, there is a rebuttable presumption that no temporary maintenance
15 is awarded.
16 [d.] F. The court shall determine the [guideline] duration of tempo-
17 rary maintenance by considering the length of the marriage.
18 G. Temporary maintenance shall terminate upon the issuance of the
19 [final award] DETERMINATION of POST-DIVORCE maintenance or the death of
20 either party, whichever occurs first.
21 [e.] H. (1) The court shall order the [presumptive award] GUIDELINE
22 AMOUNT of temporary maintenance in accordance with paragraphs c and d of
23 this subdivision, unless the court finds that the [presumptive award]
24 GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE is unjust or inappropriate and
25 adjusts the [presumptive award] GUIDELINE AMOUNT of temporary mainte-
26 nance accordingly based upon consideration of the following factors:
27 (a) [the standard of living of the parties established during the
28 marriage;
29 (b)] the age and health of the parties;
30 [(c)] (B) the PRESENT OR FUTURE earning capacity of the parties,
31 INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
32 [(d)] (C) the need of one party to incur education or training
33 expenses;
34 [(e)] (D) the wasteful dissipation of marital property[;
35 (f) the transfer], INCLUDING TRANSFERS or [encumbrance] ENCUMBRANCES
36 made in contemplation of a matrimonial action without fair consider-
37 ation;
38 [(g)] (E) the existence and duration of a pre-marital joint household
39 or a pre-divorce separate household;
40 [(h)] (F) acts by one party against another that have inhibited or
41 continue to inhibit a party's earning capacity or ability to obtain
42 meaningful employment. Such acts include but are not limited to acts of
43 domestic violence as provided in section four hundred fifty-nine-a of
44 the social services law;
45 [(i)] (G) the availability and cost of medical insurance for the
46 parties;
47 [(j)] (H) the care of [the] children or stepchildren, disabled adult
48 children or stepchildren, elderly parents or in-laws PROVIDED DURING THE
49 MARRIAGE that [has inhibited or continues to inhibit] INHIBITS a party's
50 earning capacity [or ability to obtain meaningful employment];
51 [(k) the inability of one party to obtain meaningful employment due to
52 age or absence from the workforce;
53 (l)] (I) the need to pay for exceptional additional expenses for the
54 child or children NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT
55 PURSUANT TO THE CHILD SUPPORT STANDARDS ACT, including, but not limited
56 to, schooling, day care and medical treatment;
A. 6728--B 5
1 [(m)] (J) the tax consequences to each party;
2 (K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
3 MARRIAGE;
4 [(n) marital property subject to distribution pursuant to subdivision
5 five of this part;
6 (o)] (L) the reduced or lost earning capacity of the [party seeking
7 temporary maintenance] PAYEE as a result of having foregone or delayed
8 education, training, employment or career opportunities during the
9 marriage;
10 [(p) the contributions and services of the party seeking temporary
11 maintenance as a spouse, parent, wage earner and homemaker and to the
12 career or career potential of the other party;] and
13 [(q)] (M) any other factor which the court shall expressly find to be
14 just and proper.
15 (2) Where the court finds that the [presumptive award] GUIDELINE
16 AMOUNT of temporary maintenance is unjust or inappropriate and the court
17 adjusts the [presumptive award] GUIDELINE AMOUNT of temporary mainte-
18 nance pursuant to this paragraph, the court shall set forth, in a writ-
19 ten [order] DECISION, the [amount of the unadjusted presumptive award]
20 GUIDELINE AMOUNT of temporary maintenance, the factors it considered,
21 and the reasons that the court adjusted the [presumptive award] GUIDE-
22 LINE AMOUNT of temporary maintenance. Such written [order] DECISION
23 shall not be waived by either party or counsel.
24 (3) Where either or both parties are unrepresented, the court shall
25 not enter a temporary maintenance order unless the COURT INFORMS THE
26 unrepresented party or parties [have been informed] of the [presumptive
27 award] GUIDELINE AMOUNT of temporary maintenance.
28 [f. A validly executed agreement or stipulation voluntarily entered
29 into between the parties in an action commenced after the effective date
30 of this subdivision presented to the court for incorporation in an order
31 shall include a provision stating that the parties have been advised of
32 the provisions of this subdivision, and that the presumptive award
33 provided for therein results in the correct amount of temporary mainte-
34 nance. In the event that such agreement or stipulation deviates from the
35 presumptive award of temporary maintenance, the agreement or stipulation
36 must specify the amount that such presumptive award of temporary mainte-
37 nance would have been and the reason or reasons that such agreement or
38 stipulation does not provide for payment of that amount. Such provision
39 may not be waived by either party or counsel. Nothing contained in this
40 subdivision shall be construed to alter the rights of the parties to
41 voluntarily enter into validly executed agreements or stipulations which
42 deviate from the presumptive award of temporary maintenance provided
43 such agreements or stipulations comply with the provisions of this
44 subdivision. The court shall, however, retain discretion with respect to
45 temporary, and post-divorce maintenance awards pursuant to this section.
46 Any court order incorporating a validly executed agreement or stipu-
47 lation which deviates from the presumptive award of temporary mainte-
48 nance shall set forth the court's reasons for such deviation.
49 g.] I. When a party has defaulted and/or the court is otherwise
50 presented with insufficient evidence to determine [gross] income, the
51 court shall order the temporary maintenance award based upon the needs
52 of the payee or the standard of living of the parties prior to commence-
53 ment of the divorce action, whichever is greater. Such order may be
54 retroactively modified upward without a showing of change in circum-
55 stances upon a showing of newly discovered or obtained evidence.
A. 6728--B 6
1 [h.] J. In any action or proceeding for modification of an order of
2 maintenance or alimony existing prior to the effective date of this
3 subdivision, brought pursuant to this article, the temporary maintenance
4 guidelines set forth in this subdivision shall not constitute a change
5 of circumstances warranting modification of such support order.
6 [i. In any decision made pursuant to this subdivision the court shall,
7 where appropriate, consider the effect of a barrier to remarriage, as
8 defined in subdivision six of section two hundred fifty-three of this
9 article, on the factors enumerated in this subdivision.]
10 K. THE COURT MAY ALLOCATE THE RESPONSIBILITIES OF THE RESPECTIVE
11 SPOUSES FOR THE FAMILY'S EXPENSES DURING THE PENDENCY OF THE PROCEEDING.
12 L. THE TEMPORARY MAINTENANCE ORDER SHALL NOT PREJUDICE THE RIGHTS OF
13 EITHER PARTY REGARDING A POST-DIVORCE MAINTENANCE AWARD.
14 S 2. Subdivision 6 of part B of section 236 of the domestic relations
15 law, as amended by chapter 371 of the laws of 2010, is amended to read
16 as follows:
17 6. Post-divorce maintenance awards. a. Except where the parties have
18 entered into an agreement pursuant to subdivision three of this part
19 providing for maintenance, in any matrimonial action the court [may
20 order maintenance in such amount as justice requires, having regard for
21 the standard of living of the parties established during the marriage,
22 whether the party in whose favor maintenance is granted lacks sufficient
23 property and income to provide for his or her reasonable needs and
24 whether the other party has sufficient property or income to provide for
25 the reasonable needs of the other and the circumstances of the case and
26 of the respective parties. Such order shall be effective as of the date
27 of the application therefor, and any retroactive amount of maintenance
28 due shall be paid in one sum or periodic sums, as the court shall
29 direct, taking into account any amount of temporary maintenance which
30 has been paid. In determining the amount and duration of maintenance the
31 court shall consider:
32 (1) the income and property of the respective parties including mari-
33 tal property distributed pursuant to subdivision five of this part;
34 (2) the length of the marriage;
35 (3) the age and health of both parties;
36 (4) the present and future earning capacity of both parties;
37 (5) the need of one party to incur education or training expenses;
38 (6) the existence and duration of a pre-marital joint household or a
39 pre-divorce separate household;
40 (7) acts by one party against another that have inhibited or continue
41 to inhibit a party's earning capacity or ability to obtain meaningful
42 employment. Such acts include but are not limited to acts of domestic
43 violence as provided in section four hundred fifty-nine-a of the social
44 services law;
45 (8) the ability of the party seeking maintenance to become self-sup-
46 porting and, if applicable, the period of time and training necessary
47 therefor;
48 (9) reduced or lost lifetime earning capacity of the party seeking
49 maintenance as a result of having foregone or delayed education, train-
50 ing, employment, or career opportunities during the marriage;
51 (10) the presence of children of the marriage in the respective homes
52 of the parties;
53 (11) the care of the children or stepchildren, disabled adult children
54 or stepchildren, elderly parents or in-laws that has inhibited or
55 continues to inhibit a party's earning capacity;
A. 6728--B 7
1 (12) the inability of one party to obtain meaningful employment due to
2 age or absence from the workforce;
3 (13) the need to pay for exceptional additional expenses for the
4 child/children, including but not limited to, schooling, day care and
5 medical treatment;
6 (14) the tax consequences to each party;
7 (15) the equitable distribution of marital property;
8 (16) contributions and services of the party seeking maintenance as a
9 spouse, parent, wage earner and homemaker, and to the career or career
10 potential of the other party;
11 (17) the wasteful dissipation of marital property by either spouse;
12 (18) the transfer or encumbrance made in contemplation of a matrimoni-
13 al action without fair consideration;
14 (19) the loss of health insurance benefits upon dissolution of the
15 marriage, and the availability and cost of medical insurance for the
16 parties; and
17 (20) any other factor which the court shall expressly find to be just
18 and proper] SHALL MAKE ITS AWARD FOR POST-DIVORCE MAINTENANCE PURSUANT
19 TO THE PROVISIONS OF THIS SUBDIVISION.
20 b. [In any decision made pursuant to this subdivision, the court shall
21 set forth the factors it considered and the reasons for its decision and
22 such may not be waived by either party or counsel.
23 c. The court may award permanent maintenance, but an award of mainte-
24 nance shall terminate upon the death of either party or upon the recipi-
25 ent's valid or invalid marriage, or upon modification pursuant to para-
26 graph b of subdivision nine of this part or section two hundred
27 forty-eight of this chapter.
28 d. In any decision made pursuant to this subdivision the court shall,
29 where appropriate, consider the effect of a barrier to remarriage, as
30 defined in subdivision six of section two hundred fifty-three of this
31 article, on the factors enumerated in paragraph a of this subdivision.]
32 FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL BE
33 USED:
34 (1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
35 (2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
36 (3) "INCOME" SHALL MEAN:
37 (I) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
38 IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
39 THIRTEEN OF THE FAMILY COURT ACT, EXCEPT THAT TEMPORARY MAINTENANCE PAID
40 PURSUANT TO SUBDIVISION FIVE-A OF THIS PART AND SPOUSAL SUPPORT PAID
41 PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT ACT, SHALL
42 NOT BE DEDUCTED FROM PAYOR'S INCOME; AND
43 (II) INCOME FROM INCOME-PRODUCING PROPERTY DISTRIBUTED OR TO BE
44 DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
45 (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND
46 DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
47 ARY THIRTY-FIRST, TWO THOUSAND FOURTEEN AND EVERY TWO YEARS THEREAFTER,
48 THE INCOME CAP AMOUNT SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNU-
49 AL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUM-
50 ERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU
51 OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE NEAREST ONE
52 THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
53 PUBLISH THE INCOME CAP.
54 (5) "GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
55 DOLLAR AMOUNT DERIVED BY THE APPLICATION OF PARAGRAPH C OR D OF THIS
56 SUBDIVISION.
A. 6728--B 8
1 (6) "GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
2 DURATIONAL PERIOD DETERMINED BY THE APPLICATION OF PARAGRAPH E OF THIS
3 SUBDIVISION.
4 (7) "POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION" SHALL MEAN THE
5 GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE DURATION
6 OF POST-DIVORCE MAINTENANCE.
7 (8) LENGTH OF MARRIAGE SHALL MEAN THE PERIOD FROM THE DATE OF MARRIAGE
8 UNTIL THE DATE OF COMMENCEMENT OF ACTION.
9 (9) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS
10 DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
11 HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
12 FAMILY COURT ACT.
13 C. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
14 THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTE-
15 NANCE AS FOLLOWS:
16 (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
17 THIRTY PERCENT OF THE PAYOR'S INCOME.
18 (2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
19 THE PAYEE'S INCOME BY FORTY PERCENT.
20 (3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
21 DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
22 (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
23 GRAPHS ONE AND THREE OF THIS PARAGRAPH.
24 (5) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE
25 AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF
26 THE AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS
27 THAN OR EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE
28 SHALL BE ZERO DOLLARS.
29 (6) NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, WHERE THE
30 GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE WOULD REDUCE THE PAYOR'S
31 INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
32 AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE DIFFERENCE BETWEEN THE
33 PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS
34 BELOW THE SELF-SUPPORT RESERVE, THERE IS A REBUTTABLE PRESUMPTION THAT
35 NO POST-DIVORCE MAINTENANCE IS AWARDED.
36 D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
37 DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AS FOLLOWS:
38 (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
39 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
40 INCOMES OF PAYOR AND PAYEE.
41 (2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
42 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE
43 INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
44 PAYEE.
45 (3) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE EITHER:
46 (A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
47 OR
48 (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
49 AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
50 SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH F OF THIS SUBDIVISION.
51 (4) IN ANY DECISION MADE PURSUANT TO CLAUSE (B) OF SUBPARAGRAPH THREE
52 OF THIS PARAGRAPH, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED
53 AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN DECISION MAY
54 NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
55 E. THE GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE SHALL BE DETER-
56 MINED AS FOLLOWS:
A. 6728--B 9
1 (1) THE COURT SHALL DETERMINE THE GUIDELINE DURATION OF POST-DIVORCE
2 MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:
3 LENGTH OF THE MARRIAGE % OF THE LENGTH OF THE MARRIAGE
4 FOR WHICH MAINTENANCE
5 WILL BE PAYABLE
6 0 UP TO AND INCLUDING 5 YEARS 30%
7 MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS 40%
8 MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS 50%
9 MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS 60%
10 MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS 70%
11 MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS 80%
12 MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS 90%
13 MORE THAN 20, UP TO AND INCLUDING 25 YEARS 100%
14 MORE THAN 25 YEARS NONDURATIONAL
15 (2) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH (1) OF THIS PARA-
16 GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE DEATH OF THE
17 PAYOR OR PAYEE.
18 F. (1) THE COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE GUIDELINE
19 OBLIGATION IN ACCORDANCE WITH PARAGRAPHS C, D AND E OF THIS SUBDIVISION,
20 UNLESS THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
21 GATION IS UNJUST OR INAPPROPRIATE AND ADJUSTS THE POST-DIVORCE MAINTE-
22 NANCE GUIDELINE OBLIGATION ACCORDINGLY BASED UPON CONSIDERATION OF THE
23 FOLLOWING FACTORS:
24 (A) THE AGE AND HEALTH OF THE PARTIES;
25 (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING
26 THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
27 (C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
28 (D) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
29 OR ENCUMBRANCES MADE IN CONTEMPLATION OF A MATRIMONIAL ACTION WITHOUT
30 FAIR CONSIDERATION;
31 (E) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
32 PRE-DIVORCE SEPARATE HOUSEHOLD;
33 (F) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
34 TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
35 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
36 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
37 SERVICES LAW;
38 (G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
39 (H) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
40 STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE
41 THAT INHIBITS A PARTY'S EARNING CAPACITY;
42 (I) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD
43 OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
44 TO THE CHILD SUPPORT STANDARDS ACT, INCLUDING, BUT NOT LIMITED TO,
45 SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
46 (J) THE TAX CONSEQUENCES TO EACH PARTY;
47 (K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
48 MARRIAGE;
49 (L) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
50 HAVING FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER
51 OPPORTUNITIES DURING THE MARRIAGE;
52 (M) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY;
53 (N) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
54 WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE
55 OTHER PARTY; AND
A. 6728--B 10
1 (O) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
2 AND PROPER.
3 (2) WHERE THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE
4 OBLIGATION IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE POST-DI-
5 VORCE MAINTENANCE GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE
6 COURT SHALL SET FORTH, IN A WRITTEN DECISION, THE UNADJUSTED POST-DI-
7 VORCE MAINTENANCE GUIDELINE OBLIGATION, THE FACTORS IT CONSIDERED, AND
8 THE REASONS THAT THE COURT ADJUSTED THE POST-DIVORCE MAINTENANCE OBLI-
9 GATION. SUCH WRITTEN DECISION SHALL NOT BE WAIVED BY EITHER PARTY OR
10 COUNSEL.
11 G. WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT
12 ENTER A MAINTENANCE ORDER OR JUDGMENT UNLESS THE COURT INFORMS THE
13 UNREPRESENTED PARTY OR PARTIES OF THE POST-DIVORCE MAINTENANCE GUIDELINE
14 OBLIGATION.
15 H. A VALIDLY EXECUTED AGREEMENT OR STIPULATION VOLUNTARILY ENTERED
16 INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE
17 OF THE CHAPTER OF THE LAWS OF TWO THOUSAND THIRTEEN WHICH AMENDED THIS
18 SUBDIVISION PRESENTED TO THE COURT FOR INCORPORATION IN AN ORDER OR
19 JUDGMENT SHALL INCLUDE A PROVISION STATING THAT THE PARTIES HAVE BEEN
20 ADVISED OF THE PROVISIONS OF THIS SUBDIVISION, AND THAT THE POST-DIVORCE
21 MAINTENANCE GUIDELINE OBLIGATION PROVIDED FOR THEREIN WOULD PRESUMPTIVE-
22 LY RESULT IN THE CORRECT AMOUNT OF POST-DIVORCE MAINTENANCE. IN THE
23 EVENT THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE
24 MAINTENANCE GUIDELINE OBLIGATION, THE AGREEMENT OR STIPULATION MUST
25 SPECIFY THE AMOUNT THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
26 GATION WOULD HAVE BEEN AND THE REASON OR REASONS THAT SUCH AGREEMENT OR
27 STIPULATION DOES NOT PROVIDE FOR PAYMENT OF THAT AMOUNT. SUCH PROVISION
28 MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL. NOTHING CONTAINED IN THIS
29 SUBDIVISION SHALL BE CONSTRUED TO ALTER THE RIGHTS OF THE PARTIES TO
30 VOLUNTARILY ENTER INTO VALIDLY EXECUTED AGREEMENTS OR STIPULATIONS WHICH
31 DEVIATE FROM THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION PROVIDED
32 SUCH AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS
33 SUBDIVISION. ANY COURT ORDER INCORPORATING A VALIDLY EXECUTED AGREEMENT
34 OR STIPULATION WHICH DEVIATES FROM THE POST-DIVORCE MAINTENANCE GUIDE-
35 LINE OBLIGATION SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION.
36 I. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
37 WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER
38 THE POST-DIVORCE MAINTENANCE BASED UPON THE NEEDS OF THE PAYEE OR THE
39 STANDARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE DIVORCE
40 ACTION, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROACTIVELY MODIFIED
41 UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON A SHOWING OF
42 NEWLY DISCOVERED OR OBTAINED EVIDENCE.
43 J. POST-DIVORCE MAINTENANCE MAY BE MODIFIED PURSUANT TO PARAGRAPH B OF
44 SUBDIVISION NINE OF THIS PART.
45 K. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
46 NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF A CHAPTER OF
47 THE LAWS OF TWO THOUSAND THIRTEEN WHICH AMENDED THIS SUBDIVISION,
48 BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN-
49 TENANCE SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF
50 CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
51 L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
52 NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF A CHAPTER OF
53 THE LAWS OF TWO THOUSAND THIRTEEN WHICH AMENDED THIS SUBDIVISION,
54 BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN-
55 TENANCE SET FORTH IN PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL
56 APPLY.
A. 6728--B 11
1 M. IN ANY DECISION MADE PURSUANT TO THIS SUBDIVISION THE COURT SHALL,
2 WHERE APPROPRIATE, CONSIDER THE EFFECT OF A BARRIER TO REMARRIAGE, AS
3 DEFINED IN SUBDIVISION SIX OF SECTION TWO HUNDRED FIFTY-THREE OF THIS
4 ARTICLE, ON THE FACTORS ENUMERATED IN PARAGRAPH F OF THIS SUBDIVISION.
5 S 3. Subparagraph 1 of paragraph b of subdivision 9 of part B of
6 section 236 of the domestic relations law, as amended by chapter 182 of
7 the laws of 2010, is amended to read as follows:
8 (1) Upon application by either party, the court may annul or modify
9 any prior order or judgment as to maintenance, upon a showing of the
10 [recipient's] PAYEE'S inability to be self-supporting [or a substantial
11 change in circumstance or], THE termination of child support awarded
12 pursuant to section two hundred forty of this article, OR A SUBSTANTIAL
13 CHANGE IN CIRCUMSTANCES including financial hardship, REMARRIAGE OF THE
14 PAYEE IF THE REMARRIAGE RESULTS IN A SUBSTANTIAL CHANGE IN FINANCIAL
15 CIRCUMSTANCES, AND ACTUAL RETIREMENT OF THE PAYOR IF THE RETIREMENT
16 RESULTS IN A SUBSTANTIAL CHANGE IN FINANCIAL CIRCUMSTANCES. Where, after
17 the effective date of this part, a separation agreement remains in force
18 no modification of a prior order or judgment incorporating the terms of
19 said agreement shall be made as to maintenance without a showing of
20 extreme hardship on either party, in which event the judgment or order
21 as modified shall supersede the terms of the prior agreement and judg-
22 ment for such period of time and under such circumstances as the court
23 determines. The court shall not reduce or annul any arrears of mainte-
24 nance which have been reduced to final judgment pursuant to section two
25 hundred forty-four of this article. No other arrears of maintenance
26 which have accrued prior to the making of such application shall be
27 subject to modification or annulment unless the defaulting party shows
28 good cause for failure to make application for relief from the judgment
29 or order directing such payment prior to the accrual of such arrears and
30 the facts and circumstances constituting good cause are set forth in a
31 written memorandum of decision. Such modification may increase mainte-
32 nance nunc pro tunc as of the date of application based on newly discov-
33 ered evidence. Any retroactive amount of maintenance due shall, except
34 as provided for herein, be paid in one sum or periodic sums, as the
35 court directs, taking into account any temporary or partial payments
36 which have been made. The provisions of this subdivision shall not apply
37 to a separation agreement made prior to the effective date of this part.
38 S 4. Section 412 of the family court act, as amended by chapter 281 of
39 the laws of 1980, is amended to read as follows:
40 S 412. Married person's duty to support spouse. A. A married person is
41 chargeable with the support of his or her spouse and, [if possessed of
42 sufficient means or able to earn such means, may be required to pay for
43 his or her support a fair and reasonable sum, as the court may deter-
44 mine, having due regard to the circumstances of the respective parties.]
45 EXCEPT WHERE THE PARTIES HAVE ENTERED INTO AN AGREEMENT PURSUANT TO
46 SECTION FOUR HUNDRED TWENTY-FIVE OF THIS ARTICLE PROVIDING FOR SUPPORT,
47 THE COURT SHALL MAKE ITS AWARD FOR SPOUSAL SUPPORT PURSUANT TO THE
48 PROVISIONS OF THIS PART.
49 B. FOR PURPOSES OF THIS SECTION, THE FOLLOWING DEFINITIONS SHALL BE
50 USED:
51 (1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
52 (2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
53 (3) "INCOME" SHALL MEAN INCOME AS DEFINED IN THE CHILD SUPPORT STAND-
54 ARDS ACT AND CODIFIED IN SECTION TWO HUNDRED FORTY OF THE DOMESTIC
55 RELATIONS LAW AND SECTION FOUR HUNDRED THIRTEEN OF THIS PART.
A. 6728--B 12
1 (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND
2 DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
3 ARY THIRTY-FIRST, TWO THOUSAND FOURTEEN AND EVERY TWO YEARS THEREAFTER,
4 THE INCOME CAP AMOUNT SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNU-
5 AL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUM-
6 ERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU
7 OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE NEAREST ONE
8 THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
9 PUBLISH THE INCOME CAP.
10 (5) "GUIDELINE AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED
11 BY THE APPLICATION OF SUBDIVISION C OR D OF THIS SECTION.
12 (6) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS
13 DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
14 HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW AND SECTION FOUR HUNDRED
15 THIRTEEN OF THIS PART.
16 C. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
17 THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS
18 FOLLOWS:
19 (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
20 THIRTY PERCENT OF THE PAYOR'S INCOME.
21 (2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
22 THE PAYEE'S INCOME BY FORTY PERCENT.
23 (3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
24 DERIVED FROM PARAGRAPH TWO OF THIS SUBDIVISION.
25 (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY PARA-
26 GRAPHS ONE AND THREE OF THIS SUBDIVISION.
27 (5) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
28 MINED BY PARAGRAPH FOUR OF THIS SUBDIVISION EXCEPT THAT, IF THE AMOUNT
29 DETERMINED BY PARAGRAPH FOUR OF THIS SUBDIVISION IS LESS THAN OR EQUAL
30 TO ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
31 D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
32 DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS:
33 (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
34 ONE THROUGH FOUR OF SUBDIVISION C OF THIS SECTION FOR THE TOTAL INCOMES
35 OF PAYOR AND PAYEE.
36 (2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
37 ONE THROUGH FOUR OF SUBDIVISION C OF THIS SECTION FOR THE INCOME OF
38 PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE.
39 (3) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE EITHER:
40 (A) THE CALCULATION DERIVED FROM PARAGRAPH ONE OF THIS SUBDIVISION; OR
41 (B) THE AMOUNT DERIVED FROM PARAGRAPH TWO OF THIS SUBDIVISION PLUS AN
42 AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
43 SET FORTH IN PARAGRAPH ONE OF SUBDIVISION F OF THIS SECTION.
44 (4) IN ANY DECISION MADE PURSUANT TO SUBPARAGRAPH (B) OF PARAGRAPH
45 THREE OF THIS SUBDIVISION, THE COURT SHALL SET FORTH THE FACTORS IT
46 CONSIDERED AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN
47 DECISION MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
48 E. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WHERE THE GUIDELINE
49 AMOUNT OF SPOUSAL SUPPORT WOULD REDUCE THE PAYOR'S INCOME BELOW THE
50 SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE AMOUNT OF SPOUS-
51 AL SUPPORT SHALL BE THE DIFFERENCE BETWEEN THE PAYOR'S INCOME AND THE
52 SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS BELOW THE SELF-SUPPORT
53 RESERVE, THERE IS A REBUTTABLE PRESUMPTION THAT NO SPOUSAL SUPPORT IS
54 AWARDED.
55 F. (1) THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
56 IN ACCORDANCE WITH SUBDIVISIONS C AND D OF THIS SECTION, UNLESS THE
A. 6728--B 13
1 COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT IS UNJUST OR
2 INAPPROPRIATE AND ADJUSTS THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
3 ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING FACTORS:
4 (A) THE AGE AND HEALTH OF THE PARTIES;
5 (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING
6 THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
7 (C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
8 (D) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
9 OR ENCUMBRANCES MADE IN CONTEMPLATION OF A SUPPORT PROCEEDING WITHOUT
10 FAIR CONSIDERATION;
11 (E) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
12 PRE-SUPPORT PROCEEDINGS SEPARATE HOUSEHOLD;
13 (F) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
14 TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
15 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
16 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
17 SERVICES LAW;
18 (G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
19 (H) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
20 STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE
21 THAT INHIBITS A PARTY'S EARNING CAPACITY;
22 (I) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD
23 OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
24 TO THE CHILD SUPPORT STANDARDS ACT, INCLUDING, BUT NOT LIMITED TO,
25 SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
26 (J) THE TAX CONSEQUENCES TO EACH PARTY;
27 (K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
28 MARRIAGE;
29 (L) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
30 HAVING FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER
31 OPPORTUNITIES DURING THE MARRIAGE;
32 (M) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
33 WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE
34 OTHER PARTY; AND
35 (N) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
36 AND PROPER.
37 (2) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
38 IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE GUIDELINE AMOUNT OF
39 SPOUSAL SUPPORT PURSUANT TO THIS SUBDIVISION, THE COURT SHALL SET FORTH,
40 IN A WRITTEN DECISION, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT, THE
41 FACTORS IT CONSIDERED, AND THE REASONS THAT THE COURT ADJUSTED THE
42 GUIDELINE AMOUNT OF SPOUSAL SUPPORT. SUCH WRITTEN DECISION SHALL NOT BE
43 WAIVED BY EITHER PARTY OR COUNSEL.
44 (3) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL
45 NOT ENTER A SPOUSAL SUPPORT ORDER UNLESS THE COURT INFORMS THE UNREPRE-
46 SENTED PARTY OR PARTIES OF THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT.
47 G. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
48 WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER
49 THE SPOUSAL SUPPORT AWARD BASED UPON THE NEEDS OF THE PAYEE OR THE STAN-
50 DARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE SPOUSAL
51 SUPPORT PROCEEDING, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROAC-
52 TIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON
53 A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
54 H. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF SPOUSAL
55 SUPPORT EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS
56 OF TWO THOUSAND THIRTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO
A. 6728--B 14
1 THIS ARTICLE, THE SPOUSAL SUPPORT GUIDELINES SET FORTH IN THIS SECTION
2 SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANTING MODIFICATION
3 OF SUCH SPOUSAL SUPPORT ORDER.
4 S 5. Paragraph a of subdivision 1 of part B of section 236 of the
5 domestic relations law, as amended by chapter 371 of the laws of 2010,
6 is amended to read as follows:
7 a. The term "maintenance" shall mean payments provided for in a valid
8 agreement between the parties or awarded by the court in accordance with
9 the provisions of subdivisions five-a and six of this part, to be paid
10 at fixed intervals for a definite or indefinite period of time, but an
11 award of maintenance shall terminate upon the death of either party [or
12 upon the recipient's valid or invalid marriage,] or upon modification
13 pursuant to paragraph (b) of subdivision nine of section two hundred
14 thirty-six of this part [or section two hundred forty-eight of this
15 chapter].
16 S 6. Subparagraph 7 of paragraph d of subdivision 5 of part B of
17 section 236 of the domestic relations law, as amended by chapter 281 of
18 the laws of 1980 and as renumbered by chapter 229 of the laws of 2009,
19 is amended to read as follows:
20 (7) any equitable claim to, interest in, or direct or indirect
21 contribution made to the acquisition of such marital property by the
22 party not having title, including joint efforts or expenditures and
23 contributions and services as a spouse, parent, wage earner and homemak-
24 er, and to the career or career potential of the other party. THE COURT
25 SHALL NOT CONSIDER AS MARITAL PROPERTY SUBJECT TO DISTRIBUTION THE VALUE
26 OF A SPOUSE'S ENHANCED EARNING CAPACITY ARISING FROM A LICENSE, DEGREE,
27 CELEBRITY GOODWILL, OR CAREER ENHANCEMENT. HOWEVER, IN ARRIVING AT AN
28 EQUITABLE DIVISION OF MARITAL PROPERTY, THE COURT SHALL CONSIDER THE
29 DIRECT OR INDIRECT CONTRIBUTIONS TO THE DEVELOPMENT DURING THE MARRIAGE
30 OF THE ENHANCED EARNING CAPACITY OF THE OTHER SPOUSE;
31 S 7. Section 248 of the domestic relations law is REPEALED.
32 S 8. This act shall take effect on the sixtieth day after it shall
33 have become a law.
