Relates to temporary maintenance awards and maintenance obligations

Summary of provisions

OF BILL:

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

Section 2. Subdivision 6 of part B of section 236 of the DRL, as amended by chapter 371 of the laws of 2010, is amended by providing definitions and factors to be considered to adjust the guideline amount of post-divorce maintenance award where the court finds the guideline amount is unjust or inappropriate, consistent with the definitions and factors provided in connection with determining the guideline amount of temporary maintenance. This section also provided for the guideline duration of post-divorce maintenance.

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

Section 4. Provides for the effective date.

Justification

This bill completes reforms of New York divorce laws begun in 2010 with the adoption of standards for temporary maintenance similar to the standards used for child support. The bill makes three kinds of changes to current law. First, it makes technical amendments to the temporary maintenance provisions enacted in 2010, including restating in clearer, simpler language the method for calculating the temporary maintenance guideline amount. Second, the bill adopts maintenance standards for final maintenance awards similar to those adopted in the 2010 law for temporary maintenance awards. And, third, the bill provides increased guidance to courts hearing motions to modify maintenance awards by clarifying when remarriage and retirement provide bases for modification.

In 2010, New York State adopted standards for temporary maintenance similar to the standards for child support in the Child Support Standards Act in use since 1989. This reform was a response to serious concerns about the ability of the State's then existing spousal

maintenance provisions to produce equitable results. Spousal maintenance awards at the time were inconsistent and unpredictable, creating questions about the fairness of awards and discouraging settlements. Litigation to establish maintenance was lengthy and complex. For parties who could not afford protracted litigation, maintenance was an illusory remedy.

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

As stated in the justification for the 2010 temporary maintenance legislation, a commission of the American Academy of Matrimonial Lawyers (AAML Commission) noted that various jurisdictions had adopted a formula approach to determining spousal support. The AAML Commission recommended the use of a formula based on two universal factors, the income of the parties and the length of the marriage. Additionally, the American Law Institute, in "Principles of the Law of Family Dissolution; Analysis and Recommendations" (2000) of the American Law Institute (ALI Principles), identified economic losses that spouses suffer at the end of marriage. These losses often take the form of lower earning capacity for spouses who are primary caretakers of children. The ALI Principles suggest that these losses be shared through a formula for determining post-marital spousal support that takes into account the incomes of the parties and the length of the marriage.

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

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

Section one of this bill makes technical adjustments, refining, clarifying, and streamlining the current temporary maintenance standards law. Most of the changes restate existing law in simpler forms. The provisions for calculating the formula amount, for example,

now track the case law for calculating child support below and above the income cap. Factors for judges to consider when adjusting awards have been condensed and those inapplicable to temporary maintenance removed.

Section two of this bill extends the benefits of the temporary maintenance provisions to final maintenance awards. Although the principle of the temporary maintenance standards may have had some effect on final awards, final maintenance awards remain the "wild card" in divorce litigation. Awards are still inconsistent and unpredictable, and lengthy, expensive litigation is still necessary to achieve an equitable result. Using guidelines based on a formula with flexibility for adjustments up and down fox final maintenance will change this.

Much of the second section of the bill tracks the language of the temporary maintenance law, including the restated and clarified provisions set forth in this bill for calculating the guideline amount of a temporary maintenance award. The major differences between the temporary and final maintenance provisions are the sections on duration. Temporary maintenance lasts until the legal case concludes with a final judgment of divorce. Final maintenance needs its own clear end point, and this bill proscribes a duration calculated as a percent of the length of the marriage. The longer the marriage, the longer the time the maintenance will be paid. The bill also provides that maintenance payments will end on the death of either party.

Section three of this bill amends New York's divorce laws to provide guidance for the court in deciding applications for modification of maintenance awards. It specifies two additional circumstances that support modification. The first is remarriage of the payee spouse. While remarriage does not necessarily improve financial status, remarriage in some cases may better substantially the financial standing of the payee spouse. When it does, this section allows a judge to modify an earlier order. The second circumstance Specified in this bill is the actual retirement of the payor spouse. Just as remarriage does not necessarily improve the financial status of a payee spouse, retirement does not necessarily decrease the income of a payor spouse. Retirement has become a fluid concept. People commonly work beyond traditional or social security retirement ages, and many who retire from one job find other employment, either full-time or part-time. Judges can make fair determinations about modifications only by examining the changed financial status upon actual retirement, not by speculating or making assumptions about future retirement.

Legislative history

This is a new bill.

Fiscal implications for state and local governments

None.

Effective date

This act shall take effect immediately.