Relates to spousal maintenance and child support in supreme and family court

The Child Support Standards Act has promoted uniformity and fairness through application of presumptive percentages and enumerated factors to be considered in the calculation of income, deductions from income and the bases for departures from the presumptive percentages. However, one source of persistent confusion has been the treatment of spousal maintenance in the calculation of child support with respect to the income of both the recipient and the payor spouse. This measure would clear up the ambiguity as to the implications for both parties.

First, the measure would amend Family Court Act § 413(1)(b)(5)(iii) and Domestic Relations Law § 240(1-b)(5)(iii) to add a new subclause (I) to each that would require that alimony or spousal maintenance actually paid to a spouse who is a party to the action must be added to the recipient spouse's income, provided that the order contains an, automatic adjustment to take effect upon the termination of the maintenance award. This addition would be based upon an amount already paid, e.g , an amount reported on the recipient spouse's last income tax return, and would not simply be an estimate of future payments. In that respect, it codifies several appellate cases. See, e.g., Simon v. Simon, 55 A.D.3d 477 (1st Dept., 2008); Krukencamp v. Krukencamp, 54 A.D.3d 345 (2nd Dept., 2008); Lee v. Lee, 79 A.D.3d 473 (2nd Dept.2005); Huber v. Huber, 229 A.D.2d 904 (4th Sept., 1996).

Second, this measure amends the existing provision in both Family Court Act § 413(1)(b)(5)(vii)(C) and Domestic Relations Law 240(1-b)(5)(vii)(C) to clarify that, where spousal maintenance payments are deducted from the payor's income, the order must contain a specific provision adjusting the child support amount automatically upon the termination of the spousal maintenance award. This relieves the custodial parent of the burden of moving for a modification of the child support order upon the termination of maintenance but leaves open the possibility for either or both parties to seek a modification of the automatic adjustment if, at the point where maintenance terminates, the income of either of the parties has changed in an amount that would qualify for modification under Family Court Act 451(3)(b)(ii) or Domestic Relations Law § 236B(9)(b)(2)(ii), e.g., in excess of 15% or a lapse of three years or more. The specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with Family Court Act § 451(3) or Domestic Relations Law § 236B(9)(b)(2) with the proviso that in a subsequent action for modification, the inclusion of the specific adjustment shall not by itself constitute a "substantial change of circumstances." One commentator has observed that the Legislature simply failed to consider the ambiguity of the statutory

provision and his suggestion for the courts would apply with greater force if this measure is enacted:

It is suggested that the court might comply with the requirement that there be a specific adjustment by making same in accordance with existing income levels, so long as either party is free to seek modification at any time upon a change in circumstances. This approach permits compliance with the statutory proviso without casting the prospective adjustment in stone because it keeps the courthouse door open to either party in the event that the prospective adjustment is out of line with actual income levels. See T. Tippins, New York Matrimonial Law and Practice § 7:33 (Updated Nov., 2014).

Numerous cases have held that durational spousal maintenance payments should not be deducted from the payor's income unless the order specifies some mechanism for an adjustment upon termination of the maintenance. See, e.g., Zufall v. Zufall, 109 A.D.3d 1135 (4th Dept., 2013); Schmitt v. Schmitt, 107.A.D.3d 1529 (4th Dept., 2013); Kerrigan v. Kerrigan, 71 A.D.3d 737 (2nd Dept., 2010); Smith v Smith, 1 A.D.3d 870, 872-3 (3rd Dept., 2003)(citing Matter of Baker v Baker, 291 AD2d 751, 752-753 (3rd Dept., 2002) and Kessinger v Kessinger, 202 AD2d 752, 753-754 (3rd Dept., 1994)). By including not only a mechanism but also a specific adjustment, in a child support order to take effect upon the termination of the maintenance award, this measure would enhance the long-term fairness of the order.

The statutory provisions for child support should reflect the fact that spousal maintenance is money no longer available as income to the payor, but constitutes income to the payee so long as the order or agreement for such maintenance lasts. New York State and Federal tax codes incorporate these concepts by allowing tax deductions for the payor and requiring that it be considered as income to the payee. There is no reason to distinguish the implications of maintenance when calculating child support in both Supreme and Family Court cases.

This measure, which would have no fiscal impact upon the State, would take effect on the ninetieth day after it shall have become a law.

Legislative History:

None. New proposal.