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Saturday, September 18, 2010

The 2010 Divorce Reform Amendments

The 2010 Divorce Reform Amendments

By Joel R. Brandes, Bari Brandes Corbin and Evan B. Brandes

The 2010 Session of the legislature has resulted in legislation that is intended to bring significant reform New York’s divorce process, increase the amount of temporary maintenance awards, and compel New York court to promptly make counsel and expert fee awards to the non-monied spouse. The purpose of this article is to provide the reader with a clear and concise explanation of the 2010 Divorce Reform Amendments, including the new Temporary Maintenance Guidelines which are codified in new Domestic Relations Law § 236 [B][5-a]. However, it does not contain an extensive discussion of the Temporary Maintenance Guidelines. For a comprehensive discussion of the Temporary Maintenance Guidelines we refer you to the "Guide to the Temporary Maintenance Guidelines", written by Joel R. Brandes, which comes with The New York Divorce and Family Law™ Temporary Maintenance Calculator.

Laws of 2010, Ch 384, effective October 12, 2010, amended Domestic Relations Law § 170 to add subdivision 7. It adopts the “irretrievably broken” no-fault divorce ground for New York. However, a divorce may not be granted until all of the major ancillary issues are resolved by the parties or the court.

Laws of 2010, Ch 371, effective October 12, 2010, amends Domestic Relations Law § 236 [B][6] to add a subdivision 5-a. It revises the process for setting awards of temporary maintenance during the pendency of a matrimonial action, by creating a formula and list of factors that presumptively govern such awards. It amends Domestic Relations Law § 236 [B][1][a] to update the definition of “maintenance” by cross-referencing it to Domestic Relations Law § 236 [B] [6] subdivision 5-a and amends Domestic Relations Law § 236 [B][6] to add 5 new factors for the court to consider in determining the amount and duration of “post-divorce “maintenance.

Laws of 2010, Ch 329, as amended by Laws of 2010, Ch 415, effective October 12, 2010) amended Domestic Relations Law §§ 237 and 238 to create a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. It adds actions to obtain maintenance or distribution of property after a foreign judgment of divorce to the actions for which such fees shall be awarded. In exercising the court's discretion, the court is required to seek to assure that each party is adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis pendente lite, so as to enable adequate representation from the commencement of the proceeding. In addition the court is authorized to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action. The parties and their attorneys are also required to submit an affidavit to the court with financial information to enable the court to make its determination. The monied spouse is now required to disclose how much he has agreed to pay and how much he has paid his attorney. The affidavit must include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. In addition, Domestic Relations Law § 238 was also amended to add to the actions for which such fees shall be awarded “actions to enforce a court order”.


Domestic Relations Law § 170

Domestic Relations Law § 170 was amended to allow a judgment of divorce to be granted to either a husband or a wife without assigning fault to either of the parties. A divorce can only be granted after the major ancillary issues have been resolved. Section 170 of the Domestic Relations Law was amended by adding subdivision 7 allowing a divorce where a marriage is ‘irretrievably broken”, for a period of at least six months, provided that one party has so stated under oath. It would appear that the verified complaint should suffice for this purpose. The statute does not define the terms ‘irretrievably broken, nor does it eliminate the five year statute of limitations in Domestic Relations Law § 210. The judgment can only be granted after the following ancillary issues have been resolved: the equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert fees and expenses, and custody and visitation with the infant children of the marriage.


Section 170 (7) of the domestic relations law provides as follows:

(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties or determined by the court and incorporated into the judgment of divorce.


Domestic Relations Law § 236 [B][1][5-a]

Domestic Relations Law § 236 [B][1] was amended by adding a new subdivision 5-a establishing a process for determining the presumptive amount of temporary maintenance awards, with factors for deviation, where the award is unjust or inappropriate. Laws of 2010, Ch 371, §1 . The amendments took effect immediately except for sections one, two and four, which all take effect on October 12, 2010 and apply to matrimonial actions commenced on or after the effective date of such sections. Laws of 2010, Ch 371, § 6.

The application of the temporary maintenance guidelines (“TMG”) is mandatory. In any matrimonial action the court must make its award for temporary maintenance pursuant to the provisions of Domestic Relations Law § 236[B], [5-a], except where the parties have entered into an agreement pursuant to Domestic Relations Law 236 [B][3] providing for maintenance. Domestic Relations Law § 236[B],[5-a][a]. The application temporary maintenance guidelines will only result in a maintenance award when there is an income gap between the two parties so that the payee’s income (the less-monied spouse) income is less than two thirds of the payor’s income (more monied spouse). For example, if the payor's annual income is $90,000 a year, the TMG will only result in an award if the payee's annual income is less than $60,000.

To determine the temporary maintenance guideline amount, the court must compare two calculations of the spouses' annual incomes, up to an income cap of $500,000 on the payor’s income. For both of these calculations, any income of the payor that exceeds $500,000 is not included.

Calculation (1): 30% of the payor's income minus 20% of the payee's income,

OR

Calculation (2): 40% of the combined income of the two spouses. The payee's income is then subtracted from this figure.

The sum of this calculation is the Presumptive award. The court must select the lesser of these two figures as the temporary maintenance guideline amount.

The court must order the presumptive award of temporary maintenance, unless the court finds that the presumptive award is unjust or inappropriate. Domestic Relations Law § 236 [B][5-a][e][1].

Where the court finds that the presumptive award is unjust or inappropriate, it may adjust the presumptive award of temporary maintenance accordingly based upon consideration of 17 factors.

If the payor has an annual income exceeding $500,000, the judge may adjust the amount based upon the additional income over $500,000. The court must consider 19 factors to determine any additional amount of temporary maintenance on the payor's income above the $500,000 cap.

The duration of the temporary award is determined solely by considering the length of the marriage. Historically, temporary awards were made during the entire pendency of the action. This new language indicates that it was the intention of the legislature to give the court discretion to award temporary maintenance for a limited period of time, rather than for the entire pendency of the action.

The temporary maintenance guidelines also include protections for individuals whose annual income is less than the self-support reserve.

Domestic Relations Law § 236 [B][1][5-a] provides:

5-a. Temporary maintenance awards.

a. Except where the parties have entered into an agreement pursuant to subdivision three of this part
providing for maintenance, in any matrimonial action the court shall
make its award for temporary maintenance pursuant to the provisions of
this subdivision.

b. For purposes of this subdivision, the following definitions shall
be used:

(1) "Payor" shall mean the spouse with the higher income.
(2) "Payee" shall mean the spouse with the lower income.
(3) "Length of marriage" shall mean the period from the date of
marriage until the date of commencement of action.
(4) "Income" shall mean:
(a) income as defined in the child support standards act and codified
in section two hundred forty of this article and section four hundred
thirteen of the family court act; and
(b) income from income producing property to be distributed pursuant
to subdivision five of this part.
(5) "Income cap" shall mean up to and including five hundred thousand
dollars of the payor's annual income; provided, however, beginning Janu-
ary thirty-first, two thousand twelve and every two years thereafter,
the payor's annual income amount shall increase by the product of the
average annual percentage changes in the consumer price index for all
urban consumers (CPI-U) as published by the United States department of
labor bureau of labor statistics for the two year period rounded to the
nearest one thousand dollars. The office of court administration shall
determine and publish the income cap.
(6) "Guideline amount of temporary maintenance" shall mean the sum
derived by the application of paragraph c of this subdivision.
(7) "Guideline duration" shall mean the durational period determined
by the application of paragraph d of this subdivision.
(8) "Presumptive award" shall mean the guideline amount of the tempo-
rary maintenance award for the guideline duration prior to the court's
application of any adjustment factors as provided in subparagraph one of
paragraph e of this subdivision.
(9) "Self-support reserve" shall mean the self-support reserve as
defined in the child support standards act and codified in section two
hundred forty of this article and section four hundred thirteen of the
family court act.

c. The court shall determine the guideline amount of temporary mainte-
nance in accordance with the provisions of this paragraph after deter-
mining the income of the parties:

(1) Where the payor's income is up to and including the income cap:

(a) the court shall subtract twenty percent of the income of the payee
from thirty percent of the income up to the income cap of the payor.
(b) the court shall then multiply the sum of the payor's income up to
and including the income cap and all of the payee's income by forty
percent.
(c) the court shall subtract the income of the payee from the amount
derived from clause (b) of this subparagraph.
(d) the guideline amount of temporary maintenance shall be the lower
of the amounts determined by clauses (a) and (c) of this subparagraph;
if the amount determined by clause (c) of this subparagraph is less than
or equal to zero, the guideline amount shall be zero dollars.

(2) Where the income of the payor exceeds the income cap:

(a) the court shall determine the guideline amount of temporary main-
tenance for that portion of the payor's income that is up to and includ-
ing the income cap according to subparagraph one of this paragraph, and,
for the payor's income in excess of the income cap, the court shall
determine any additional guideline amount of temporary maintenance
through consideration of the following factors:

(i) the length of the marriage;
(ii) the substantial differences in the incomes of the parties;
(iii) the standard of living of the parties established during the
marriage;
(iv) the age and health of the parties;
(v) the present and future earning capacity of the parties;
(vi) the need of one party to incur education or training expenses;
(vii) the wasteful dissipation of marital property;
(viii) the transfer or encumbrance made in contemplation of a matrimo-
nial action without fair consideration;
(ix) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(x) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(xi) the availability and cost of medical insurance for the parties;
(xii) the care of the children or stepchildren, disabled adult chil-
dren or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity or ability to obtain
meaningful employment;
(xiii) the inability of one party to obtain meaningful employment due
to age or absence from the workforce;
(xiv) the need to pay for exceptional additional expenses for the
child or children, including, but not limited to, schooling, day care
and medical treatment;
(xv) the tax consequences to each party;
(xvi) marital property subject to distribution pursuant to subdivision
five of this part;
(xvii) the reduced or lost earning capacity of the party seeking
temporary maintenance as a result of having foregone or delayed educa-
tion, training, employment or career opportunities during the marriage;
(xviii) the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and
(xix) any other factor which the court shall expressly find to be just
and proper.

(b) In any decision made pursuant to this subparagraph, the court
shall set forth the factors it considered and the reasons for its deci-
sion. Such written order may not be waived by either party or counsel.

(3) Notwithstanding the provisions of this paragraph, where the guide-
line amount of temporary maintenance would reduce the payor's income
below the self-support reserve for a single person, the presumptive
amount of the guideline amount of temporary maintenance shall be the
difference between the payor's income and the self-support reserve. If
the payor's income is below the self-support reserve, there is a rebutt-
able presumption that no temporary maintenance is awarded.

d. The court shall determine the guideline duration of temporary main-
tenance by considering the length of the marriage. Temporary maintenance
shall terminate upon the issuance of the final award of maintenance or
the death of either party, whichever occurs first.

e. (1) The court shall order the presumptive award of temporary main-
tenance in accordance with paragraphs c and d of this subdivision,
unless the court finds that the presumptive award is unjust or inappro-
priate and adjusts the presumptive award of temporary maintenance
accordingly based upon consideration of the following factors:

(a) the standard of living of the parties established during the
marriage;
(b) the age and health of the parties;
(c) the earning capacity of the parties;
(d) the need of one party to incur education or training expenses;
(e) the wasteful dissipation of marital property;
(f) the transfer or encumbrance made in contemplation of a matrimonial
action without fair consideration;
(g) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(h) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(i) the availability and cost of medical insurance for the parties;
(j) the care of the children or stepchildren, disabled adult children
or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity or ability to obtain
meaningful employment;
(k) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
(l) the need to pay for exceptional additional expenses for the child
or children, including, but not limited to, schooling, day care and
medical treatment;
(m) the tax consequences to each party;
(n) marital property subject to distribution pursuant to subdivision
five of this part;
(o) the reduced or lost earning capacity of the party seeking tempo-
rary maintenance as a result of having foregone or delayed education,
training, employment or career opportunities during the marriage;
(p) the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and
(q) any other factor which the court shall expressly find to be just
and proper.

(2) Where the court finds that the presumptive award of temporary
maintenance is unjust or inappropriate and the court adjusts the
presumptive award of temporary maintenance pursuant to this paragraph,
the court shall set forth, in a written order, the amount of the unad-
justed presumptive award of temporary maintenance, the factors it
considered, and the reasons that the court adjusted the presumptive
award of temporary maintenance. Such written order shall not be waived
by either party or counsel.

(3) Where either or both parties are unrepresented, the court shall
not enter a temporary maintenance order unless the unrepresented party
or parties have been informed of the presumptive award of temporary
maintenance.

f. A validly executed agreement or stipulation voluntarily entered
into between the parties in an action commenced after the effective date
of this subdivision presented to the court for incorporation in an order
shall include a provision stating that the parties have been advised of
the provisions of this subdivision, and that the presumptive award
provided for therein results in the correct amount of temporary mainte-
nance. In the event that such agreement or stipulation deviates from the
presumptive award of temporary maintenance, the agreement or stipulation
must specify the amount that such presumptive award of temporary mainte-
nance would have been and the reason or reasons that such agreement or
stipulation does not provide for payment of that amount. Such provision
may not be waived by either party or counsel. Nothing contained in this
subdivision shall be construed to alter the rights of the parties to
voluntarily enter into validly executed agreements or stipulations which
deviate from the presumptive award of temporary maintenance provided
such agreements or stipulations comply with the provisions of this
subdivision. The court shall, however, retain discretion with respect to
temporary, and post-divorce maintenance awards pursuant to this section.
Any court order incorporating a validly executed agreement or stipu-
lation which deviates from the presumptive award of temporary mainte-
nance shall set forth the court's reasons for such deviation.

g. When a party has defaulted and/or the court is otherwise presented
with insufficient evidence to determine gross income, the court shall
order the temporary maintenance award based upon the needs of the payee
or the standard of living of the parties prior to commencement of the
divorce action, whichever is greater. Such order may be retroactively
modified upward without a showing of change in circumstances upon a
showing of newly discovered or obtained evidence.

h. In any action or proceeding for modification of an order of mainte-
nance or alimony existing prior to the effective date of this subdivi-
sion, brought pursuant to this article, the temporary maintenance guide-
lines set forth in this subdivision shall not constitute a change of
circumstances warranting modification of such support order.

i. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in this subdivision.


Domestic Relations Law § 236 [B][1][a]

Domestic Relations Law § 236 [B][1][a] was amended to update the definition of “maintenance” by cross-referencing it to Domestic Relations Law § 236 [B] subdivision 5-a.

Domestic Relations Law § 236 [B][1][a] now provides as follows: “The term "maintenance" shall mean” payments provided for in a valid agreement between the parties or awarded by the court in accordance with the provisions of subdivisions five-a and six of this part, to be paid at fixed intervals for a definite or indefinite period of time, but an award of maintenance shall terminate upon the death of either party or upon the recipient's valid or invalid marriage, or upon modification pursuant to paragraph (b) of subdivision nine of section two hundred thirty-six of this part or section two hundred forty-eight of this chapter.”


Domestic Relations Law § 236 [B][6]

Domestic Relations Law § 236 [B][6] was amended to add as factors for the court to consider in determining the amount and duration of maintenance: the need of one party to incur education or training expenses; the existence and duration of a pre-marital joint household or a pre-divorce separate household; the presence of children of the marriage in the respective homes of the parties; the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity; and the inability of one party to obtain meaningful employment due to age or absence from the workforce.

The title of this section was amended from “Maintenance “ to “ Post-divorce Maintenance Awards”, which might lead the reader to make the erroneous assumption that the section is only applicable to divorce proceedings, and not applicable to maintenance awards in other proceedings, such as annulment or dissolution, in which they maintenance awards are also authorized.



Domestic Relations Law § 236 [B][6], now entitled “ Post-divorce Maintenance Awards” provides as follows:

6. a. Except where the parties have entered into an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action the court
may order maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties. Such order shall be effective as of the date of the application therefor, and any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider:

(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the length of the marriage;
(3) the age and health of both parties;
(4) the present and future earning capacity of both parties;
(5) the need of one party to incur education or training expenses;
(6) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(7) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(8) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(9) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(10) the presence of children of the marriage in the respective homes of the parties;
(11) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity;
(12) the inability of one party to obtain meaningful employment due to age or absence from the workforce;
(13) the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
(14) the tax consequences to each party;
(15) the equitable distribution of marital property;
(16) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(17) the wasteful dissipation of marital property by either spouse;
(18) The transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
(19) the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
(20) any other factor which the court shall expressly find to be just and proper.

b. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel.

c. The court may award permanent maintenance, but an award of maintenance shall terminate upon the death of either party or upon the recipient's valid or invalid marriage, or upon modification pursuant to paragraph [(b)] B of subdivision nine of this part or section two hundred forty-eight of this chapter.

d. In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision six of section two hundred fifty-three of this article, on the factors enumerated in paragraph a of this subdivision.


Domestic Relations Law § 237

Domestic Relations Law § 237 was amended to create a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. It adds actions to obtain maintenance or distribution of property after a foreign judgment of divorce to the actions for which such fees shall be awarded. In exercising the court's discretion, the court is required to seek to assure that each party is adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis pendente lite, so as to enable adequate representation from the commencement of the proceeding. provide for a presumption of counsel fees to a non-monied spouse. In addition the court is authorized to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action. The parties and their attorneys are also required to submit an affidavit to the court with financial information to enable the court to make its determination. The monied spouse is now required to disclose how much he has agreed to pay and how much he has paid his attorney. The affidavit must include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses


Prior law placed an onus upon the party in a matrimonial action seeking counsel fees pendente lite, to show why the interests of justice require it. In addition, Judges appeared reluctant to order pendente lite counsel fee awards in matrimonial actions under the current statute. The Assembly Memorandum in support of this amendment indicates that given the importance of pendente lite counsel fees, and the frequency of financial imbalance between parties to matrimonial proceedings, it is inappropriate to place the burden upon a non-monied spouse to justify it. This amendment requires that in a matrimonial action an order for pendente lite counsel fees and expenses should be granted at the outset of the case to ensure adequate representation of the less monied spouse from the commencement of the proceeding, and it is left to the affected parties to show why, in the interests of justice, the order should not be made. Nothing precludes an award of counsel fees to a nonprofit legal service organization where such organization provides legal services without charge to a party who is eligible for counsel fees. In addition, the amendment is not intended to preclude a court's discretionary power to award counsel fees for services and expenses incurred before the action begins.


Domestic Relations Law §237 provides as follows:

(a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and did not appear therein where such spouse asserts the nullity of such foreign judgment, (5) to obtain Maintenance or distribution of property following a foreign judgment of divorce, or (6) to enjoin the prosecution in any other jurisdiction of an action for a divorce, the court may direct either spouse or, where an action for annulment is maintained after the death of a spouse, may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in his own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.


(b) Upon any application to enforce, annul or modify an order or judgment for alimony, maintenance, distributive award, distribution of marital property or for custody, visitation, or maintenance of a child, made as in section two hundred thirty-six or section two hundred forty of this article provided, or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement, between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in counsel's own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.


Domestic Relations Law § 238

Domestic Relations Law § 238 was amended to create a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. It adds actions to obtain maintenance or distribution of property after a foreign judgment of divorce to the actions for which such fees shall be awarded and provides that such actions shall also include actions to enforce a court order. In exercising the court's discretion, the court is required to seek to assure that each party is adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis pendente lite, so as to enable adequate representation from the commencement of the proceeding. In addition the court is authorized to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action. The parties and their attorneys are also required to submit an affidavit to the court with financial information to enable the court to make its determination. The monied spouse is now required to disclose how much he has agreed to pay and how much he has paid his attorney. The affidavit must include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses

Prior law placed an onus upon the party in a matrimonial action seeking counsel fees pendente lite, to show why the interests of justice require it. In addition, Judges appeared reluctant to order pendente lite counsel fee awards in matrimonial actions under the current statute. The Assembly Memorandum in support of this amendment indicates that given the importance of pendente lite counsel fees, and the frequency of financial imbalance between parties to matrimonial proceedings, it is inappropriate to place the burden upon a non-monied spouse to justify it. This amendment requires that in a matrimonial action an order for pendente lite counsel fees and expenses should be granted at the outset of the case to ensure adequate representation of the less monied spouse from the commencement of the proceeding, and it is left to the affected parties to show why, in the interests of justice, the order should not be made. Nothing precludes an award of counsel fees to a nonprofit legal service organization where such organization provides legal services without charge to a party who is eligible for counsel fees. In addition, the amendment is not intended to preclude a court's discretionary power to award counsel fees for services and expenses incurred before the action begins.


Section 238 of the domestic relations law provides as follows:

238. Expenses in enforcement and modification proceedings. In any action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce, separation, annulment , declaration of nullity of a void marriage, declaration of validity or nullity of a judgement of divorce rendered against a spouse who was the defendant in any action outside the state of new york and did not appear therein where such spouse asserts the nullity of such foreign judgment, or an injunction restraining the prosecution in any other jurisdiction of an action for a divorce, or in any proceeding pursuant to section two hundred forty-three, two hundred forty-four, two hundred forty-five, or two hundred forty-six of this article, the court may in its discretion require either party to pay counsel fees and fees and expenses of experts directly to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In any such action or proceeding, applications for fees and expenses may be maintained by the attorney for the respective parties in counsel's own name and in counsel's own behalf. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their representative attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.

Summary of Laws of 2010 New York Family Law Legislation

Summary of Laws of 2010 New York Family Law Legislation (September 18, 2010)


Chapter 32

Amends Domestic Relations Law §236 [B][2][b][2]

Exempts from the automatic orders provisions prohibiting transfer of any retirement plan upon commencement of a matrimonial action when the retirement plan is already paying benefits. Effective date March 30, 2010


Chapter 41

Amends CPLR 1101; Amends Domestic Relations Law §§ 236, 75-f, 76-f, 112-b, 113, 115-b, 240 & 254, ; Amends Executive Law §§ 503 & 508; Amends Judiciary Law §§ 35 & 35-a; Amends Family Court Act, generally; Amends Public Health Law §§ 2306 & 2782; Amends Social Services Law §§ 358-a, 372, 383-c, 384, 384-a, 384-b, 409-e, 409-f & 422.

Replaces the term "law guardian" with the term "attorney for the child" to more accurately reflect the attorney's role. Effective date April 14, 2010.


Chapter 182

Amends Tax Law §§ 606, 171-a, 171-h & 697, Tax Law ; amends Family Court §§ Act 451, 461 & 440, adds Family Court Act §437-a; amends Domestic Relations Law §236; amends Social Services Law §111-h.

The "Low Income Support Obligation and Performance Improvement Act." Laws of 2010, Ch 186, § 1, effective October 13, 2010.

Family Court Act § 451 is amended to provide two new bases for modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This section would provide that incarceration is not a bar to finding a substantial change in circumstances under certain conditions and also would clarify that retroactive support is paid and enforceable as provided under Family Court Act § 440. Also conforms the language of the Family Court Act provision governing the modification of child support orders to the Domestic Relations Law so that both provisions provide for a "substantial change in circumstances" as a basis for modification of an order of child support. Laws of 2010, Ch 182, §6 (Effective October 13, 2010 and applicable only to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. Laws of 2010, Ch 186, § 13)

Domestic Relations Law § 236 [B](9)(b) is amended by separating out the "substantial change of circumstances" basis for modification of child support orders into its own section for clarity and provides two new bases for the modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This provision provides that incarceration is not a bar to finding a substantial change in circumstances under certain conditions. Laws of 2010, Ch 186, § 7 (Effective October 13, 2010 and applicable only to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. Laws of 2010, Ch 186, § 13)


Family Court Act §440 is amended to add a subdivision 4 which requires that all orders establishing a child support obligation contain a notice regarding the right to apply for a modification of the order if there has been a substantial change in circumstances or the occurrence of the additional enumerated bases for modification. Laws of 2010, Ch 186, § 8.(Effective October 13, 2010. Laws of 2010, Ch 186, § 13)


Domestic Relations Law § 236 [B](7) is amended to add a new subdivision (d) which require that all orders establishing a child support obligation contain a notice regarding the right to apply for a modification of the order if there has been a substantial change in circum stances or the occurrence of the additional enumerated bases for modification. Laws of 2010, Ch 186, § 9.(Effective October 13, 2010. Laws of 2010, Ch 186, § 13)

Family Court Act § 437-a is added to authorize the Family Court to require the non-custodial parent of a child to seek employment, or to participate in job training, employment counseling or other programs designed to lead to employment, where such programs are available, if he or she is unemployed at the time the court is establishing the support order unless he or she is in receipt of supplemental security income (SSI) or social security disability (SSD) benefits. Laws of 2010, Ch 186, § 10.(Effective October 13, 2010. Laws of 2010, Ch 186, § 13)

Social Services Law § 111-h is amended to state that if the respondent is required to participate in work programs or activities, and if the order of support is made payable on behalf of persons in receipt of public assistance, the support collection unit may not file a petition to increase the support obligation for twelve months from the date of entry of the order if the respondent's income is derived from the work activity or program. Laws of 2010, Ch 186, § 11. (Effective October 13, 2010. Laws of 2010, Ch 186, § 13)


Family Court Act § 461 is amended to reflect the two new bases for modification of an order of child support. Laws of 2010, Ch 186, § 12. (Effective October 13, 2010. Laws of 2010, Ch 186, § 13)

These provisions are effective October 13, 2010, except that: (1) sections 6 and 7 only apply to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. Laws of 2010, Ch 186, § 13


Chapter 325

Amends Family Court Act § 842

Authorizes the family court in family offense proceedings to extend an order of protection upon the showing of good cause or consent of the parties. Effective date August 13, 2010. ( § 3.This act shall take effect immediately, and shall apply to all orders entered prior to such effective date, and to all actions and proceedings pending on or commenced on or after such effective date.) Laws of 2010, Ch 325 (8.13.10)


Chapter 329

Amends Domestic Relations Law § § 237 & 238.

Laws of 2010, Ch 329, as amended by Laws of 2010, Ch 415, effective October 12, 2010, amended Domestic Relations Law §§ 237 and 238 to create a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. It adds actions to obtain maintenance or distribution of property after a foreign judgment of divorce to the actions for which such fees shall be awarded. In exercising the court's discretion, the court is required to seek to assure that each party is adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis pendente lite, so as to enable adequate representation from the commencement of the proceeding. In addition the court is authorized to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action. The parties and their attorneys are also required to submit an affidavit to the court with financial information to enable the court to make its determination. The monied spouse is now required to disclose how much he has agreed to pay and how much he has paid his attorney. The affidavit must include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. In addition, Domestic Relations Law § 238 was also amended to add to the actions for which such fees shall be awarded “actions to enforce a court order”.


Chapter 341

Amends Family Court Act §§ 446, 551, 656, 759 and 1056 . Amends Domestic Relations Law § 240(3)(e). Amends Family Court Act 812 (1). Amends Family Court Act 842.

Provides that orders of protection shall not be denied, in support proceedings, paternity proceedings, termination of parental rights proceedings, person in need of supervision proceedings, family offense proceedings and child protective proceedings, solely on the basis that the events alleged are not contemporaneous with the application therefor or the conclusion of the action. Effective date August 13, 2010. Laws of 2010, Ch 341 (8.13.10)

In addition these sections provide that the duration of any temporary order
shall not by itself determine the length or issuance of any final order.

According to the Assembly Memorandum this legislation is intended to overturn a line of Appellate Division cases that have attempted to institute a statute of limitations on incidents of abuse that a victim of domestic violence may plead and prove, where the legislature specifically did not institute one. (See, Yoba v. Yoba, 183 A.D.2d 418(1st Dept.,1992); Swersky v. Swersky, 299 A.D.2d 540(2d Dept., 2002); Thomas v. Thomas, 32 A.D.3d 521 (2d Dept., 2006);Matter of Ashley P., 31 A.D.3d 767 (2d Dept., 2006); Matter of Ann P. v.Nicholas C.F., 44 A.D.3d 776 (2d Dept., 2007); Matter of Hall v. Hall, 45 A.D.2d 842 (2d Dept., 2007); Matter of Loriann Q. v. Frank R., 53 A.D.3d 735 (3d Dept., 2008), denying civil orders of protection as a primary, or as a secondary basis, because the incidents pled were not "relatively contemporaneous"). The memorandum states that there is a disturbing trend in the Family, Supreme and Integrated Domestic Violence Courts of denying civil orders of protection where incidents of abuse alleged are considered by the courts as not "relatively contemporaneous" with the filing of the petition, the findings of fact, or the dispositional stage of the proceeding, presumably in reliance on the Appellate Division cases. Furthermore, some trial courts have been denying a final order order or protection on the basis that the temporary order of protection was in effect for too long. This legislation is also intended to address such denials of final orders of protection that are based on the duration of a temporary order issued during the pendency of a case. It is important for a court to hear and consider the history of violence to craft a careful and meaningful order that accomplishes the purpose of securing safety. Allegations that are more remote in time can give the finder of fact an enormous amount of information including how long the violent relationship has lasted so the finder of fact can craft a meaningful order of protection. Any incident of abuse that precipitates the filing for an order of protection must be viewed in the context of the history of the pattern of abuse suffered by the applicant and there is no statutory requirement to limit incidents pled to be within a specific period of time.
See NY Legis Memo 341(2010)



Chapter 342

Amends Family Court Act §§1055, 1087, 1088, 1089 & 1090; Adds Article 10-B, Section 109; Amends Social Services Law § § 371 & 409-a.

Relates to trial discharges of children in foster care and voluntary re-placements of older adolescents in foster care; amends the provisions of Articles 10 and 10-A of the Family Court Act to extend trial discharges at court permanency hearings for successive periods of up to six months until a child turns 21. The trial discharges require the consent of the child. The law also adds a new Article 10-B to permit youths between 18 and 21 who have opted to leave state care within the past 24 months to seek to return voluntarily. In such cases, the court must find that the youth has no reasonable alternatives to foster care, that he or she consents to an appropriate vocational or educational program and that a return would be in his or her best interests. Attorneys who previously represented the youths would continue to do so.

Laws of 2010, Ch 342. Effective November 11, 2010.



Chapter 343

Adds Family Court Act Article 6 Part 1-A, Sections 635 - 637; Amends Family Court Act §1089; Amends Social Services Law §384-b.

Provides a process for a petition to restore previously terminated parental rights under certain circumstances.

Effective date November 11, 2010 (§ 4. This act shall take effect on the ninetieth day after it shall have become a law. Laws of 2010, Ch 343).

This legislation amends the provisions of the Family Court Act and the Social Services Law to authorize Family Court, in narrowly-defined circumstances, to restore a birth parent's parental rights after they have been terminated. With the consent of the respondent in the original termination of parental rights proceeding, as well as that of the child, a petition to restore parental rights could be filed provided: (i) at least two years had elapsed since issuance of the order transferring guardianship and custody of the child; (ii) the original adjudication terminating parental rights could not have been based upon severe or repeated child abuse; and (iii) the child would have to be under the jurisdiction of the Family Court and have a permanency goal other than adoption. The agency to which guardianship and custody had been committed must consent unless the court finds that the consent had been withheld without good cause. Family Court is authorized to grant the petition where clear and convincing proof establishes that restoration of parental rights would be in the child's best interests. This restoration would, in effect, revoke the disposition transferring guardianship and custody of the child but would leave in place the fact-finding upon which the termination of parental rights adjudication had been based. A clause also would be added to the permanency hearing order provision permitting the Court to recommend the filing of a petition to restore parental rights.

The court has the authority to grant the restoration petition conditionally. This option would retain guardianship and custody of the child with the agency but authorize the child to reside with the birth parent on a trial discharge for a period of up. to six months, during which time the agency may be directed to supervise the family and to develop a reunification plan with appropriate transitional services. If temporary restoration proves successful and in the child's best interests, it could be made final at the end of the designated period and guardianship and custody would be transferred at that time to the birth parent. If, however, the child were removed from the birth parent during the designated period by reason of abuse or neglect, the Court could dismiss the restoration petition and direct the agency that retains guardianship and custody to make efforts to further an alternative permanency plan for the child. See NY Legis Memo 343 (2010).


Chapter 363

Repealed & Added Judiciary Law §212 sub 2 P(n).

Extends for two years authorization of courts to designate referees to determine order-of-protection applications by Family Courts based, in part, on ex parte conversations. The state empowered the referees to issue the orders when first approving their use against non-family members in 2008. Grants the chief administrator of the courts the authority to allow referees to determine applications to a family court for an order of protection when such application is made ex parte or without the presence of all the parties except the applicant; specifies that such provisions shall only apply during those hours that the family court is in session and after 5:00 p.m.

Effective date August 13, 2010. (Laws of 2010, Ch 363 effective 8.13.10 (This act shall take effect immediately; provided that paragraph (n) of subdivision 2 of section 212 of the judiciary law, as Added by section one of this act, shall expire and be deemed repealed September 1, 2012.)


Chapter 371

Amends Domestic Relations Law § 236.

Amends Domestic Relations Law § 236 [B][6] to add a subdivision 5-a which revises the process for setting awards of temporary maintenance during the pendency of a matrimonial action, by creating a formula and list of factors that presumptively govern such awards. It amends Domestic Relations Law § 236 [B][1][a] to update the definition of “maintenance” by cross-referencing it to Domestic Relations Law § 236 [B] [6] subdivision 5-a.
It also amends Domestic Relations Law § 236 [B][6] to add 5 new factors for the court to consider in determining the amount and duration of maintenance. Subdivision 3 directs the law revision commission to study the effects of divorce and maintenance.

Effective date August 13, 2010. (Laws of 2010, Ch 371 (8.13.10) (§ 6. This act shall take effect immediately; provided, however, that sections one, two and four of this act shall take effect on the sixtieth day after this act shall have become a law and shall apply to matrimonial actions commenced on or after the effective date of such sections.)


Chapter 384

Amends Domestic Relations Law 170 to add subdivision 7.

Provides that spouses may be granted a judgment of divorce in a timely fashion provided the relationship between husband and wife is irretrievably broken” for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce may be granted unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

Effective October 12, 2010. Laws of 2010, Ch 384, (8.13.10) (§ 2. This act shall take effect on the sixtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date.)


Chapter 415

Amends Chapter 329 of the Laws of 2010 (which amended DRL 237 and 238) to change its effective date from 120 days after it shall have become a law to 60 days after it shall have become a law. Effective date August 13, 2010. Laws of 2010, Ch 415. (8.13.10)

Chapter 421

Amends Family Court Act 352.3 to add (1-a)

Authorizes family courts to issue orders of protection for the protection of witnesses.
Provides that upon the issuance of an order pursuant to Family Court Act 315.3 or the
entry of an order of disposition pursuant to Family Court Act 352.2, a court may, for good cause shown, enter an order of protection against any respondent requiring that the respondent refrain from engaging in conduct, against any designated witness specifically named by the court in the order, that would constitute intimidation of a witness pursuant to section 215.15, 215.16 or 215.17 of the penal law or an attempt thereof provided that the court makes a finding that the respondent did previously, or is likely to in the future, intimidate or attempt to intimidate such witness in such manner.

Effective November 28, 2010


Chapter 446

Amends Family Court Act 153-b; amends Domestic Relations Law 240 (3-a) in relation to service of orders of protection including applications to extend and petitions for violations of orders of protection and temporary orders of protection in family court.

Clarifies that litigants have the same options of peace and police officer service for orders and temporary orders and legal papers issued in later stages of family offense proceedings including service of extended orders and for petitions
alleging violations of orders of protection as they have for original orders and accompanying pleadings. Makes it clear that such service must be available
without fee to the litigants. The provision prohibiting fees from being charged by police and peace officers for service of all orders of
protection, whether issued upon default, temporary, modified, final, or
extended as well as associated petitions and summonses, emphasizes legislation enacted in 2007. That statute amended section 8011 of the Civil Practice Law and Rules to prohibit sheriffs from charging the statutory $45 fee and any mileage fees for service of orders of protection and related orders or papers when service has been directed by the court. See L. 2007, c. 36. The statute is essential to ensure compliance by New York State with The Federal Violence Against Women Act.
42 U.S.C.A. S3796hh(c)(4).

Effective August 30, 2010.