Bill Text: NY A02580 | 2009-2010 | General Assembly | Amended
Bill Title: Enacts "The Divorce Reform Act of 2010"; establishes the provision of temporary maintenance in matrimonial actions; directs the law revision commission to study the effects of divorce and maintenance; establishes an irretrievable breakdown in a marital relationship for 6 months or more as a ground for divorce; provides for the award of counsel and expert fees in matrimonial actions.
Spectrum: Partisan Bill (Democrat 26-0)
Status: (Introduced - Dead) 2010-10-01 - enacting clause stricken [A02580 Detail]
Download: New_York-2009-A02580-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2580--D
2009-2010 Regular Sessions
I N A S S E M B L Y
January 20, 2009
___________
Introduced by M. of A. WEINSTEIN, PAULIN, CYMBROWITZ, JAFFEE, GUNTHER,
PERRY, LANCMAN, TITUS, COOK, SKARTADOS -- Multi-Sponsored by -- M. of
A. DESTITO, FIELDS, GABRYSZAK, HOOPER, HYER-SPENCER, JOHN, KOON,
MARKEY, MILLMAN, NOLAN, PEOPLES-STOKES, REILLY, TOWNS, WEISENBERG --
read once and referred to the Committee on Judiciary -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- recommitted to the Committee on Judiciary in
accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- again reported from said committee with amendments, ordered
reprinted as amended and recommitted to said committee -- again
reported from said committee with amendments, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the domestic relations law, in relation to enacting the
"Divorce Reform Act of 2010"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "Divorce Reform Act of 2010".
3 S 2. Section 170 of the domestic relations law is amended by adding a
4 new subdivision 7 to read as follows:
5 (7) THE RELATIONSHIP BETWEEN HUSBAND AND WIFE HAS BROKEN DOWN IRRE-
6 TRIEVABLY FOR A PERIOD OF AT LEAST SIX MONTHS, PROVIDED THAT ONE PARTY
7 HAS SO STATED UNDER OATH. NO JUDGMENT OF DIVORCE SHALL BE GRANTED UNDER
8 THIS SUBDIVISION UNLESS AND UNTIL THE ECONOMIC ISSUES OF EQUITABLE
9 DISTRIBUTION OF MARITAL PROPERTY, THE PAYMENT OR WAIVER OF SPOUSAL
10 SUPPORT, THE PAYMENT OF CHILD SUPPORT, THE PAYMENT OF COUNSEL AND
11 EXPERTS' FEES AND EXPENSES AS WELL AS THE CUSTODY AND VISITATION WITH
12 THE INFANT CHILDREN OF THE MARRIAGE HAVE BEEN RESOLVED BY THE PARTIES,
13 OR DETERMINED BY THE COURT AND INCORPORATED INTO THE JUDGMENT OF
14 DIVORCE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01545-16-0
A. 2580--D 2
1 S 3. Part B of section 236 of the domestic relations law is amended by
2 adding a new subdivision 5-a to read as follows:
3 5-A. TEMPORARY MAINTENANCE AWARDS. A. EXCEPT WHERE THE PARTIES HAVE
4 ENTERED INTO AN AGREEMENT PURSUANT TO SUBDIVISION THREE OF THIS PART
5 PROVIDING FOR MAINTENANCE, IN ANY MATRIMONIAL ACTION THE COURT SHALL
6 MAKE ITS AWARD FOR TEMPORARY MAINTENANCE PURSUANT TO THE PROVISIONS OF
7 THIS SUBDIVISION.
8 B. FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL
9 BE USED:
10 (1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
11 (2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
12 (3) "LENGTH OF MARRIAGE" SHALL MEAN THE PERIOD FROM THE DATE OF
13 MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
14 (4) "INCOME" SHALL MEAN:
15 (A) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
16 IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
17 THIRTEEN OF THE FAMILY COURT ACT; AND
18 (B) INCOME FROM INCOME PRODUCING PROPERTY TO BE DISTRIBUTED PURSUANT
19 TO SUBDIVISION FIVE OF THIS PART.
20 (5) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING FIVE HUNDRED THOUSAND
21 DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
22 ARY THIRTY-FIRST, TWO THOUSAND TWELVE AND EVERY TWO YEARS THEREAFTER,
23 THE PAYOR'S ANNUAL INCOME AMOUNT SHALL INCREASE BY THE PRODUCT OF THE
24 AVERAGE ANNUAL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL
25 URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF
26 LABOR BUREAU OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE
27 NEAREST ONE THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL
28 DETERMINE AND PUBLISH THE INCOME CAP.
29 (6) "GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE" SHALL MEAN THE SUM
30 DERIVED BY THE APPLICATION OF PARAGRAPH C OF THIS SUBDIVISION.
31 (7) "GUIDELINE DURATION" SHALL MEAN THE DURATIONAL PERIOD DETERMINED
32 BY THE APPLICATION OF PARAGRAPH D OF THIS SUBDIVISION.
33 (8) "PRESUMPTIVE AWARD" SHALL MEAN THE GUIDELINE AMOUNT OF THE TEMPO-
34 RARY MAINTENANCE AWARD FOR THE GUIDELINE DURATION PRIOR TO THE COURT'S
35 APPLICATION OF ANY ADJUSTMENT FACTORS AS PROVIDED IN SUBPARAGRAPH ONE OF
36 PARAGRAPH E OF THIS SUBDIVISION.
37 (9) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS
38 DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
39 HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
40 FAMILY COURT ACT.
41 C. THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
42 NANCE IN ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH AFTER DETER-
43 MINING THE INCOME OF THE PARTIES:
44 (1) WHERE THE PAYOR'S INCOME IS UP TO AND INCLUDING THE INCOME CAP:
45 (A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE INCOME OF THE PAYEE
46 FROM THIRTY PERCENT OF THE INCOME UP TO THE INCOME CAP OF THE PAYOR.
47 (B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME UP TO
48 AND INCLUDING THE INCOME CAP AND ALL OF THE PAYEE'S INCOME BY FORTY
49 PERCENT.
50 (C) THE COURT SHALL SUBTRACT THE INCOME OF THE PAYEE FROM THE AMOUNT
51 DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
52 (D) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE LOWER
53 OF THE AMOUNTS DETERMINED BY CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH;
54 IF THE AMOUNT DETERMINED BY CLAUSE (C) OF THIS SUBPARAGRAPH IS LESS THAN
55 OR EQUAL TO ZERO, THE GUIDELINE AMOUNT SHALL BE ZERO DOLLARS.
56 (2) WHERE THE INCOME OF THE PAYOR EXCEEDS THE INCOME CAP:
A. 2580--D 3
1 (A) THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAIN-
2 TENANCE FOR THAT PORTION OF THE PAYOR'S INCOME THAT IS UP TO AND INCLUD-
3 ING THE INCOME CAP ACCORDING TO SUBPARAGRAPH ONE OF THIS PARAGRAPH, AND,
4 FOR THE PAYOR'S INCOME IN EXCESS OF THE INCOME CAP, THE COURT SHALL
5 DETERMINE ANY ADDITIONAL GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE
6 THROUGH CONSIDERATION OF THE FOLLOWING FACTORS:
7 (I) THE LENGTH OF THE MARRIAGE;
8 (II) THE SUBSTANTIAL DIFFERENCES IN THE INCOMES OF THE PARTIES;
9 (III) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
10 MARRIAGE;
11 (IV) THE AGE AND HEALTH OF THE PARTIES;
12 (V) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES;
13 (VI) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
14 (VII) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
15 (VIII) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMO-
16 NIAL ACTION WITHOUT FAIR CONSIDERATION;
17 (IX) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
18 PRE-DIVORCE SEPARATE HOUSEHOLD;
19 (X) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
20 TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
21 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
22 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
23 SERVICES LAW;
24 (XI) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
25 (XII) THE CARE OF THE CHILDREN OR STEPCHILDREN, DISABLED ADULT CHIL-
26 DREN OR STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS THAT HAS INHIBITED OR
27 CONTINUES TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN
28 MEANINGFUL EMPLOYMENT;
29 (XIII) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE
30 TO AGE OR ABSENCE FROM THE WORKFORCE;
31 (XIV) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE
32 CHILD OR CHILDREN, INCLUDING, BUT NOT LIMITED TO, SCHOOLING, DAY CARE
33 AND MEDICAL TREATMENT;
34 (XV) THE TAX CONSEQUENCES TO EACH PARTY;
35 (XVI) MARITAL PROPERTY SUBJECT TO DISTRIBUTION PURSUANT TO SUBDIVISION
36 FIVE OF THIS PART;
37 (XVII) THE REDUCED OR LOST EARNING CAPACITY OF THE PARTY SEEKING
38 TEMPORARY MAINTENANCE AS A RESULT OF HAVING FOREGONE OR DELAYED EDUCA-
39 TION, TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE;
40 (XVIII) THE CONTRIBUTIONS AND SERVICES OF THE PARTY SEEKING TEMPORARY
41 MAINTENANCE AS A SPOUSE, PARENT, WAGE EARNER AND HOMEMAKER AND TO THE
42 CAREER OR CAREER POTENTIAL OF THE OTHER PARTY; AND
43 (XIX) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
44 AND PROPER.
45 (B) IN ANY DECISION MADE PURSUANT TO THIS SUBPARAGRAPH, THE COURT
46 SHALL SET FORTH THE FACTORS IT CONSIDERED AND THE REASONS FOR ITS DECI-
47 SION. SUCH WRITTEN ORDER MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
48 (3) NOTWITHSTANDING THE PROVISIONS OF THIS PARAGRAPH, WHERE THE GUIDE-
49 LINE AMOUNT OF TEMPORARY MAINTENANCE WOULD REDUCE THE PAYOR'S INCOME
50 BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE PRESUMPTIVE
51 AMOUNT OF THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE
52 DIFFERENCE BETWEEN THE PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE. IF
53 THE PAYOR'S INCOME IS BELOW THE SELF-SUPPORT RESERVE, THERE IS A REBUTT-
54 ABLE PRESUMPTION THAT NO TEMPORARY MAINTENANCE IS AWARDED.
55 D. THE COURT SHALL DETERMINE THE GUIDELINE DURATION OF TEMPORARY MAIN-
56 TENANCE BY CONSIDERING THE LENGTH OF THE MARRIAGE. TEMPORARY MAINTENANCE
A. 2580--D 4
1 SHALL TERMINATE UPON THE ISSUANCE OF THE FINAL AWARD OF MAINTENANCE OR
2 THE DEATH OF EITHER PARTY, WHICHEVER OCCURS FIRST.
3 E. (1) THE COURT SHALL ORDER THE PRESUMPTIVE AWARD OF TEMPORARY MAIN-
4 TENANCE IN ACCORDANCE WITH PARAGRAPHS C AND D OF THIS SUBDIVISION,
5 UNLESS THE COURT FINDS THAT THE PRESUMPTIVE AWARD IS UNJUST OR INAPPRO-
6 PRIATE AND ADJUSTS THE PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE
7 ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING FACTORS:
8 (A) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
9 MARRIAGE;
10 (B) THE AGE AND HEALTH OF THE PARTIES;
11 (C) THE EARNING CAPACITY OF THE PARTIES;
12 (D) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
13 (E) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
14 (F) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMONIAL
15 ACTION WITHOUT FAIR CONSIDERATION;
16 (G) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
17 PRE-DIVORCE SEPARATE HOUSEHOLD;
18 (H) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
19 TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
20 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
21 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
22 SERVICES LAW;
23 (I) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
24 (J) THE CARE OF THE CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN
25 OR STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS THAT HAS INHIBITED OR
26 CONTINUES TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN
27 MEANINGFUL EMPLOYMENT;
28 (K) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE TO
29 AGE OR ABSENCE FROM THE WORKFORCE;
30 (L) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD
31 OR CHILDREN, INCLUDING, BUT NOT LIMITED TO, SCHOOLING, DAY CARE AND
32 MEDICAL TREATMENT;
33 (M) THE TAX CONSEQUENCES TO EACH PARTY;
34 (N) MARITAL PROPERTY SUBJECT TO DISTRIBUTION PURSUANT TO SUBDIVISION
35 FIVE OF THIS PART;
36 (O) THE REDUCED OR LOST EARNING CAPACITY OF THE PARTY SEEKING TEMPO-
37 RARY MAINTENANCE AS A RESULT OF HAVING FOREGONE OR DELAYED EDUCATION,
38 TRAINING, EMPLOYMENT OR CAREER OPPORTUNITIES DURING THE MARRIAGE;
39 (P) THE CONTRIBUTIONS AND SERVICES OF THE PARTY SEEKING TEMPORARY
40 MAINTENANCE AS A SPOUSE, PARENT, WAGE EARNER AND HOMEMAKER AND TO THE
41 CAREER OR CAREER POTENTIAL OF THE OTHER PARTY; AND
42 (Q) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
43 AND PROPER.
44 (2) WHERE THE COURT FINDS THAT THE PRESUMPTIVE AWARD OF TEMPORARY
45 MAINTENANCE IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE
46 PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE PURSUANT TO THIS PARAGRAPH,
47 THE COURT SHALL SET FORTH, IN A WRITTEN ORDER, THE AMOUNT OF THE UNAD-
48 JUSTED PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE, THE FACTORS IT
49 CONSIDERED, AND THE REASONS THAT THE COURT ADJUSTED THE PRESUMPTIVE
50 AWARD OF TEMPORARY MAINTENANCE. SUCH WRITTEN ORDER SHALL NOT BE WAIVED
51 BY EITHER PARTY OR COUNSEL.
52 (3) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL
53 NOT ENTER A TEMPORARY MAINTENANCE ORDER UNLESS THE UNREPRESENTED PARTY
54 OR PARTIES HAVE BEEN INFORMED OF THE PRESUMPTIVE AWARD OF TEMPORARY
55 MAINTENANCE.
A. 2580--D 5
1 F. A VALIDLY EXECUTED AGREEMENT OR STIPULATION VOLUNTARILY ENTERED
2 INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE
3 OF THIS SUBDIVISION PRESENTED TO THE COURT FOR INCORPORATION IN AN ORDER
4 SHALL INCLUDE A PROVISION STATING THAT THE PARTIES HAVE BEEN ADVISED OF
5 THE PROVISIONS OF THIS SUBDIVISION, AND THAT THE PRESUMPTIVE AWARD
6 PROVIDED FOR THEREIN RESULTS IN THE CORRECT AMOUNT OF TEMPORARY MAINTE-
7 NANCE. IN THE EVENT THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE
8 PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE, THE AGREEMENT OR STIPULATION
9 MUST SPECIFY THE AMOUNT THAT SUCH PRESUMPTIVE AWARD OF TEMPORARY MAINTE-
10 NANCE WOULD HAVE BEEN AND THE REASON OR REASONS THAT SUCH AGREEMENT OR
11 STIPULATION DOES NOT PROVIDE FOR PAYMENT OF THAT AMOUNT. SUCH PROVISION
12 MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL. NOTHING CONTAINED IN THIS
13 SUBDIVISION SHALL BE CONSTRUED TO ALTER THE RIGHTS OF THE PARTIES TO
14 VOLUNTARILY ENTER INTO VALIDLY EXECUTED AGREEMENTS OR STIPULATIONS WHICH
15 DEVIATE FROM THE PRESUMPTIVE AWARD OF TEMPORARY MAINTENANCE PROVIDED
16 SUCH AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS
17 SUBDIVISION. THE COURT SHALL, HOWEVER, RETAIN DISCRETION WITH RESPECT TO
18 TEMPORARY, AND POST-DIVORCE MAINTENANCE AWARDS PURSUANT TO THIS SECTION.
19 ANY COURT ORDER INCORPORATING A VALIDLY EXECUTED AGREEMENT OR STIPU-
20 LATION WHICH DEVIATES FROM THE PRESUMPTIVE AWARD OF TEMPORARY MAINTE-
21 NANCE SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION.
22 G. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
23 WITH INSUFFICIENT EVIDENCE TO DETERMINE GROSS INCOME, THE COURT SHALL
24 ORDER THE TEMPORARY MAINTENANCE AWARD BASED UPON THE NEEDS OF THE PAYEE
25 OR THE STANDARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE
26 DIVORCE ACTION, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROACTIVELY
27 MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON A
28 SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
29 H. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
30 NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVI-
31 SION, BROUGHT PURSUANT TO THIS ARTICLE, THE TEMPORARY MAINTENANCE GUIDE-
32 LINES SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF
33 CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
34 I. IN ANY DECISION MADE PURSUANT TO THIS SUBDIVISION THE COURT SHALL,
35 WHERE APPROPRIATE, CONSIDER THE EFFECT OF A BARRIER TO REMARRIAGE, AS
36 DEFINED IN SUBDIVISION SIX OF SECTION TWO HUNDRED FIFTY-THREE OF THIS
37 ARTICLE, ON THE FACTORS ENUMERATED IN THIS SUBDIVISION.
38 S 4. Subdivision 6 of part B of section 236 of the domestic relations
39 law, as amended by chapter 884 of the laws of 1986, subparagraph 10 as
40 amended, subparagraph 11 as added and subparagraph 12 of paragraph a as
41 renumbered by chapter 229 of the laws of 2009, paragraph d as added by
42 chapter 415 of the laws of 1992, is amended to read as follows:
43 6. [Maintenance] POST-DIVORCE MAINTENANCE AWARDS. a. Except where the
44 parties have entered into an agreement pursuant to subdivision three of
45 this part providing for maintenance, in any matrimonial action the court
46 may order [temporary maintenance or] maintenance in such amount as
47 justice requires, having regard for the standard of living of the
48 parties established during the marriage, whether the party in whose
49 favor maintenance is granted lacks sufficient property and income to
50 provide for his or her reasonable needs and whether the other party has
51 sufficient property or income to provide for the reasonable needs of the
52 other and the circumstances of the case and of the respective parties.
53 Such order shall be effective as of the date of the application there-
54 for, and any retroactive amount of maintenance due shall be paid in one
55 sum or periodic sums, as the court shall direct, taking into account any
A. 2580--D 6
1 amount of temporary maintenance which has been paid. In determining the
2 amount and duration of maintenance the court shall consider:
3 (1) the income and property of the respective parties including mari-
4 tal property distributed pursuant to subdivision five of this part;
5 (2) the [duration] LENGTH of the marriage [and];
6 (3) the age and health of both parties;
7 [(3)] (4) the present and future earning capacity of both parties;
8 [(4)] (5) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING
9 EXPENSES;
10 (6) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
11 PRE-DIVORCE SEPARATE HOUSEHOLD;
12 (7) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
13 TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
14 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
15 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
16 SERVICES LAW;
17 (8) the ability of the party seeking maintenance to become self-sup-
18 porting and, if applicable, the period of time and training necessary
19 therefor;
20 [(5)] (9) reduced or lost lifetime earning capacity of the party seek-
21 ing maintenance as a result of having foregone or delayed education,
22 training, employment, or career opportunities during the marriage;
23 [(6)] (10) the presence of children of the marriage in the respective
24 homes of the parties;
25 [(7)] (11) THE CARE OF THE CHILDREN OR STEPCHILDREN, DISABLED ADULT
26 CHILDREN OR STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS THAT HAS INHIBITED
27 OR CONTINUES TO INHIBIT A PARTY'S EARNING CAPACITY;
28 (12) THE INABILITY OF ONE PARTY TO OBTAIN MEANINGFUL EMPLOYMENT DUE TO
29 AGE OR ABSENCE FROM THE WORKFORCE;
30 (13) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE
31 CHILD/CHILDREN, INCLUDING BUT NOT LIMITED TO, SCHOOLING, DAY CARE AND
32 MEDICAL TREATMENT;
33 (14) the tax consequences to each party;
34 [(8)] (15) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY;
35 (16) contributions and services of the party seeking maintenance as a
36 spouse, parent, wage earner and homemaker, and to the career or career
37 potential of the other party;
38 [(9)] (17) the wasteful dissipation of marital property by either
39 spouse;
40 [(10) any] (18) THE transfer or encumbrance made in contemplation of a
41 matrimonial action without fair consideration;
42 [(11)] (19) the loss of health insurance benefits upon dissolution of
43 the marriage, AND THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE
44 PARTIES; and
45 [(12)] (20) any other factor which the court shall expressly find to
46 be just and proper.
47 b. In any decision made pursuant to this subdivision, the court shall
48 set forth the factors it considered and the reasons for its decision and
49 such may not be waived by either party or counsel.
50 c. The court may award permanent maintenance, but an award of mainte-
51 nance shall terminate upon the death of either party or upon the recipi-
52 ent's valid or invalid marriage, or upon modification pursuant to para-
53 graph [(b)] B of subdivision nine of [section two hundred thirty-six of]
54 this part or section two hundred forty-eight of this chapter.
55 d. In any decision made pursuant to this subdivision the court shall,
56 where appropriate, consider the effect of a barrier to remarriage, as
A. 2580--D 7
1 defined in subdivision six of section two hundred fifty-three of this
2 article, on the factors enumerated in paragraph a of this subdivision.
3 S 5. Part B of section 236 of the domestic relations law is amended by
4 adding a new subdivision 6-a to read as follows:
5 6-A. LAW REVISION COMMISSION STUDY. A. THE LEGISLATURE HEREBY FINDS
6 AND DECLARES IT TO BE THE POLICY OF THE STATE THAT IT IS NECESSARY TO
7 ACHIEVE EQUITABLE OUTCOMES WHEN FAMILIES DIVORCE AND IT IS IMPORTANT TO
8 ENSURE THAT THE ECONOMIC CONSEQUENCES OF A DIVORCE ARE FAIRLY SHARED BY
9 DIVORCING COUPLES. SERIOUS CONCERNS HAVE BEEN RAISED THAT THE IMPLEMEN-
10 TATION OF NEW YORK STATE'S MAINTENANCE LAWS HAVE NOT RESULTED IN EQUITA-
11 BLE RESULTS. MAINTENANCE IS OFTEN NOT GRANTED AND WHERE IT IS GRANTED,
12 THE RESULTS ARE INCONSISTENT AND UNPREDICTABLE. THIS RAISES SERIOUS
13 CONCERNS ABOUT THE ABILITY OF OUR CURRENT MAINTENANCE LAWS TO ACHIEVE
14 EQUITABLE AND FAIR OUTCOMES.
15 THE LEGISLATURE FURTHER FINDS A COMPREHENSIVE REVIEW OF THE PROVISIONS
16 OF OUR STATE'S MAINTENANCE LAWS SHOULD BE UNDERTAKEN. IT HAS BEEN THIRTY
17 YEARS SINCE THE LEGISLATURE SIGNIFICANTLY REFORMED OUR STATE'S DIVORCE
18 LAWS BY ENACTING EQUITABLE DISTRIBUTION OF MARITAL PROPERTY AND INTRO-
19 DUCED THE CONCEPT OF MAINTENANCE TO REPLACE ALIMONY. CONCERNS THAT THE
20 IMPLEMENTATION OF OUR MAINTENANCE LAWS HAVE NOT RESULTED IN EQUITABLE
21 RESULTS COMPEL THE NEED FOR A REVIEW OF THESE LAWS.
22 B. THE LAW REVISION COMMISSION IS HEREBY DIRECTED TO:
23 (1) REVIEW AND ASSESS THE ECONOMIC CONSEQUENCES OF DIVORCE ON THE
24 PARTIES;
25 (2) REVIEW THE MAINTENANCE LAWS OF THE STATE, INCLUDING THE WAY IN
26 WHICH THEY ARE ADMINISTERED TO DETERMINE THE IMPACT OF THESE LAWS ON
27 POST MARITAL ECONOMIC DISPARITIES, AND THE EFFECTIVENESS OF SUCH LAWS
28 AND THEIR ADMINISTRATION IN ACHIEVING THE STATE'S POLICY GOALS AND
29 OBJECTIVES OF ENSURING THAT THE ECONOMIC CONSEQUENCES OF A DIVORCE ARE
30 FAIRLY AND EQUITABLY SHARED BY THE DIVORCING COUPLE; AND
31 (3) MAKE RECOMMENDATIONS TO THE LEGISLATURE, INCLUDING SUCH PROPOSED
32 REVISIONS OF SUCH LAWS AS IT DETERMINES NECESSARY TO ACHIEVE THESE GOALS
33 AND OBJECTIVES.
34 C. THE LAW REVISION COMMISSION SHALL MAKE A PRELIMINARY REPORT TO THE
35 LEGISLATURE AND THE GOVERNOR OF ITS FINDINGS, CONCLUSIONS, AND ANY
36 RECOMMENDATIONS NOT LATER THAN NINE MONTHS FROM THE EFFECTIVE DATE OF
37 THIS SUBDIVISION, AND A FINAL REPORT OF ITS FINDINGS, CONCLUSIONS AND
38 RECOMMENDATIONS NOT LATER THAN DECEMBER THIRTY-FIRST, TWO THOUSAND ELEV-
39 EN.
40 S 6. Paragraph a of subdivision 1 of part B of section 236 of the
41 domestic relations law, as amended by chapter 884 of the laws of 1986,
42 is amended to read as follows:
43 a. The term "maintenance" shall mean payments provided for in a valid
44 agreement between the parties or awarded by the court in accordance with
45 the provisions of [subdivision] SUBDIVISIONS FIVE-A AND six of this
46 part, to be paid at fixed intervals for a definite or indefinite period
47 of time, but an award of maintenance shall terminate upon the death of
48 either party or upon the recipient's valid or invalid marriage, or upon
49 modification pursuant to paragraph (b) of subdivision nine of section
50 two hundred thirty-six of this part or section two hundred forty-eight
51 of this chapter.
52 S 7. Subdivisions (a) and (b) of section 237 of the domestic relations
53 law, subdivision (a) as amended by chapter 482 of the laws of 1987 and
54 subdivision (b) as amended by chapter 892 of the laws of 1986, are
55 amended to read as follows:
A. 2580--D 8
1 (a) In any action or proceeding brought (1) to annul a marriage or to
2 declare the nullity of a void marriage, or (2) for a separation, or (3)
3 for a divorce, or (4) to declare the validity or nullity of a judgment
4 of divorce rendered against a spouse who was the defendant in any action
5 outside the State of New York and did not appear therein where such
6 spouse asserts the nullity of such foreign judgment, or (5) TO OBTAIN
7 MAINTENANCE OR DISTRIBUTION OF PROPERTY FOLLOWING A FOREIGN JUDGMENT OF
8 DIVORCE, OR (6) to enjoin the prosecution in any other jurisdiction of
9 an action for a divorce, the court may direct either spouse or, where
10 an action for annulment is maintained after the death of a spouse, may
11 direct the person or persons maintaining the action, to pay [such sum or
12 sums of money] COUNSEL FEES AND FEES AND EXPENSES OF EXPERTS directly to
13 the attorney of the other spouse to enable [that spouse] THE OTHER
14 PARTY to carry on or defend the action or proceeding as, in the court's
15 discretion, justice requires, having regard to the circumstances of the
16 case and of the respective parties. [Such direction must be made in the
17 final judgment in such action or proceeding, or by one or more orders
18 from time to time before final judgment, or by both such order or orders
19 and the final judgment; provided, however, such direction shall be made
20 prior to final judgment where it is shown that such order is required to
21 enable the petitioning party to properly proceed] THERE SHALL BE REBUTT-
22 ABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED TO THE LESS MONIED
23 SPOUSE. IN EXERCISING THE COURT'S DISCRETION, THE COURT SHALL SEEK TO
24 ASSURE THAT EACH PARTY SHALL BE ADEQUATELY REPRESENTED AND THAT WHERE
25 FEES AND EXPENSES ARE TO BE AWARDED, THEY SHALL BE AWARDED ON A TIMELY
26 BASIS, PENDENTE LITE, SO AS TO ENABLE ADEQUATE REPRESENTATION FROM THE
27 COMMENCEMENT OF THE PROCEEDING. APPLICATIONS FOR THE AWARD OF FEES AND
28 EXPENSES MAY BE MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH
29 PARTIES TO THE ACTION OR PROCEEDING AND THEIR RESPECTIVE ATTORNEYS,
30 SHALL FILE AN AFFIDAVIT WITH THE COURT DETAILING THE FINANCIAL AGREEMENT
31 BETWEEN THE PARTY AND THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE
32 AMOUNT OF ANY RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE
33 HOURLY AMOUNT CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID,
34 ANY EXPERTS, AND ANY ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES. Any
35 applications for [counsel] fees and expenses may be maintained by the
36 attorney for either spouse in his own name in the same proceeding.
37 PAYMENT OF ANY RETAINER FEES TO THE ATTORNEY FOR THE PETITIONING PARTY
38 SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO AN APPLICANT WHICH
39 WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
40 (b) Upon any application to ENFORCE, annul or modify an order or judg-
41 ment for alimony, MAINTENANCE, DISTRIBUTIVE AWARD, DISTRIBUTION OF MARI-
42 TAL PROPERTY or for custody, visitation, or maintenance of a child, made
43 as in section two hundred thirty-six or section two hundred forty OF
44 THIS ARTICLE provided, or upon any application by writ of habeas corpus
45 or by petition and order to show cause concerning custody, visitation or
46 maintenance of a child, the court may direct a spouse or parent to pay
47 [such sum or sums of money for the prosecution or the defense of] COUN-
48 SEL FEES AND FEES AND EXPENSES OF EXPERTS DIRECTLY TO THE ATTORNEY OF
49 THE OTHER SPOUSE OR PARENT TO ENABLE THE OTHER PARTY TO CARRY ON OR
50 DEFEND the application or proceeding by the other spouse or parent as,
51 in the court's discretion, justice requires, having regard to the
52 circumstances of the case and of the respective parties. [With respect
53 to any such application or proceeding, such direction may be made in the
54 order or judgment by which the particular application or proceeding is
55 finally determined, or by one or more orders from time to time before
56 the final order or judgment, or by both such order or orders and the
A. 2580--D 9
1 final order or judgment] THERE SHALL BE A REBUTTABLE PRESUMPTION THAT
2 COUNSEL FEES SHALL BE AWARDED TO THE LESS MONIED SPOUSE. IN EXERCISING
3 THE COURT'S DISCRETION, THE COURT SHALL SEEK TO ASSURE THAT EACH PARTY
4 SHALL BE ADEQUATELY REPRESENTED AND THAT WHERE FEES AND EXPENSES ARE TO
5 BE AWARDED, THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE LITE, SO
6 AS TO ENABLE ADEQUATE REPRESENTATION FROM THE COMMENCEMENT OF THE
7 PROCEEDING. APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES MAY BE MADE
8 AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES TO THE ACTION
9 OR PROCEEDING AND THEIR RESPECTIVE ATTORNEYS, SHALL FILE AN AFFIDAVIT
10 WITH THE COURT DETAILING THE FINANCIAL AGREEMENT, BETWEEN THE PARTY AND
11 THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE AMOUNT OF ANY RETAINER,
12 THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE HOURLY AMOUNT CHARGED
13 BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS, AND ANY
14 ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES. Any applications for [coun-
15 sel] fees and expenses may be maintained by the attorney for either
16 spouse in counsel's own name in the same proceeding. [Representation by
17 an attorney pursuant to paragraph (b) of subdivision nine of section one
18 hundred eleven-b of the social services law shall not preclude an award
19 of counsel fees to an applicant which would otherwise be allowed under
20 this section.] PAYMENT OF ANY RETAINER FEES TO THE ATTORNEY FOR THE
21 PETITIONING PARTY SHALL NOT PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO
22 AN APPLICANT WHICH WOULD OTHERWISE BE ALLOWED UNDER THIS SECTION.
23 S 8. Section 238 of the domestic relations law, as amended by chapter
24 529 of the laws of 1978, is amended to read as follows:
25 S 238. Expenses in enforcement AND MODIFICATION proceedings. In any
26 action or proceeding to [compel the payment of any sum of money required
27 to be paid by] ENFORCE OR MODIFY ANY PROVISION OF a judgment or order
28 entered in an action for divorce, separation, annulment [or], declara-
29 tion of nullity of a void marriage, DECLARATION OF VALIDITY OR NULLITY
30 OF A JUDGEMENT OF DIVORCE RENDERED AGAINST A SPOUSE WHO WAS THE DEFEND-
31 ANT IN ANY ACTION OUTSIDE THE STATE OF NEW YORK AND DID NOT APPEAR THER-
32 EIN WHERE SUCH SPOUSE ASSERTS THE NULLITY OF SUCH FOREIGN JUDGMENT, OR
33 AN INJUNCTION RESTRAINING THE PROSECUTION IN ANY OTHER JURISDICTION OF
34 AN ACTION FOR A DIVORCE, or in any proceeding pursuant to section two
35 hundred forty-three, two hundred forty-four, two hundred forty-five, or
36 two hundred forty-six OF THIS ARTICLE, the court may in its discretion
37 require either party to pay [the expenses of the other in bringing,
38 carrying on, or defending such action or proceeding] COUNSEL FEES AND
39 FEES AND EXPENSES OF EXPERTS DIRECTLY TO THE ATTORNEY OF THE OTHER PARTY
40 TO ENABLE THE OTHER PARTY TO CARRY ON OR DEFEND THE ACTION OR PROCEEDING
41 AS, IN THE COURT'S DISCRETION, JUSTICE REQUIRES HAVING REGARD TO THE
42 CIRCUMSTANCES OF THE CASE AND OF THE RESPECTIVE PARTIES. THERE SHALL BE
43 A REBUTTABLE PRESUMPTION THAT COUNSEL FEES SHALL BE AWARDED TO THE LESS
44 MONIED SPOUSE. In any such action or proceeding, applications for [coun-
45 sel] fees and expenses may be maintained by the attorney for the respec-
46 tive parties in counsel's own name and in counsel's own behalf. IN EXER-
47 CISING THE COURT'S DISCRETION, THE COURT SHALL SEEK TO ASSURE THAT EACH
48 PARTY SHALL BE ADEQUATELY REPRESENTED AND THAT WHERE FEES AND EXPENSES
49 ARE TO BE AWARDED, THEY SHALL BE AWARDED ON A TIMELY BASIS, PENDENTE
50 LITE, SO AS TO ENABLE ADEQUATE REPRESENTATION FROM THE COMMENCEMENT OF
51 THE PROCEEDING. APPLICATIONS FOR THE AWARD OF FEES AND EXPENSES MAY BE
52 MADE AT ANY TIME OR TIMES PRIOR TO FINAL JUDGMENT. BOTH PARTIES TO THE
53 ACTION OR PROCEEDING AND THEIR REPRESENTATIVE ATTORNEYS, SHALL FILE AN
54 AFFIDAVIT WITH THE COURT DETAILING THE FINANCIAL AGREEMENT BETWEEN THE
55 PARTY AND THE ATTORNEY. SUCH AFFIDAVIT SHALL INCLUDE THE AMOUNT OF ANY
56 RETAINER, THE AMOUNTS PAID AND STILL OWING THEREUNDER, THE HOURLY AMOUNT
A. 2580--D 10
1 CHARGED BY THE ATTORNEY, THE AMOUNTS PAID, OR TO BE PAID, ANY EXPERTS,
2 AND ANY ADDITIONAL COSTS, DISBURSEMENTS OR EXPENSES. PAYMENT OF ANY
3 RETAINER FEES TO THE ATTORNEY FOR THE PETITIONING PARTY SHALL NOT
4 PRECLUDE ANY AWARDS OF FEES AND EXPENSES TO AN APPLICANT WHICH WOULD
5 OTHERWISE BE ALLOWED UNDER THIS SECTION.
6 S 9. The chief administrator of the courts shall promulgate all rules
7 necessary to implement the provisions of this act.
8 S 10. This act shall take effect immediately; provided, however, that
9 sections two, three, four, six, seven and eight of this act shall take
10 effect on the one hundred twentieth day after this act shall have become
11 a law and shall apply to matrimonial actions commenced on or after the
12 effective date of such sections.
