The Low Income Support Obligation and Performance Improvement Act of 2010
By Joel R. Brandes, Bari Brandes Corbin and Evan B. Brandes
The "Low Income Support Obligation and Performance Improvement Act," amends the provisions of the Domestic Relations Law and the Family Court Act with regard to modification of child support orders.
Domestic Relations Law § 236 [B](9)(b)(2) was amended by separating out the "substantial change of circumstances" basis for modification of child support orders into its own section for clarity. It provides two new bases for the modification of an order of child support, and is applicable to an application for either an upward or downward modification of child support. The first basis for modification of child support is the passage of three years since the order was entered, last modified, or adjusted. The second basis for modification of child support is a 15 percent change in either party's income since the order was entered, last modified or adjusted. Any reduction in income must be involuntary and the party whose income has been reduced must have made diligent attempts to secure employment commensurate with his or her education, ability and experience.
Thus, a reduction in a party’s income is not a basis for a downward modification of child support, unless the reduction in income is involuntary and the party whose income has been reduced has made diligent attempts to secure employment commensurate with his or her education, ability and experience. However, a 15% increase in a party’s income is a basis for an upward modification of child support, overruling the prior rule that an increase in income alone was not a basis to modify child support. Neither of these rules are applicable where the parties “opt out” of this modification provision in a surviving, validly executed, agreement or stipulation.
The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This provision also provides that incarceration is a not a bar to finding a substantial change in circumstances under certain conditions.
Domestic Relations Law § 236 [B](9)(b) (2) now provides:
(2) (i) The court may modify an order of child support, including an
order incorporating without merging an agreement or stipulation of the
parties, upon a showing of a substantial change in circumstances. Incar-
ceration shall not be a bar to finding a substantial change in circum-
stances provided such incarceration is not the result of non-payment of
a child support order, or an offense against the custodial parent or
child who is the subject of the order or judgment.
(ii) In addition, unless the parties have specifically opted out of
the following provisions in a validly executed agreement or stipulation
entered into between the parties, the court may modify an order of child
support where:
(A) three years have passed since the order was entered, last modified
or adjusted; or
(B) there has been a change in either party's gross income by fifteen
percent or more since the order was entered, last modified, or adjusted.
A reduction in income shall not be considered as a ground for modifica-
tion unless it was involuntary and the party has made diligent attempts
to secure employment commensurate with his or her education, ability,
and experience.
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 provides that incarceration is not a bar to finding a substantial change in circumstances under certain conditions, and also clarifies that retroactive support is paid and enforceable as provided under Family Court Act § 440.
The language of Family Court Act § 451 governing the modification of child support orders and the language of Domestic Relations Law § 236 [B](9)(b) are conformed so that both provisions provide for a "substantial change in circumstances" as a basis for modification of an order of child support.
Opting-out of Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b)
The “Child Support Standards Act” allows the parties to "opt out" of its provisions regarding the basic child support obligation by executing a written agreement doing so. The statute states that it does not alter the rights of the parties to "voluntarily enter into validly executed agreements or stipulations.” It specifically provides that the parties may agree that the child support standards "established by this subdivision" are not applicable to validly executed agreements or stipulations voluntarily entered into between the parties, "when executed.” However, a validly executed agreement or stipulation that "opts-out" of the child support standards act which is presented to the court for incorporation in an order or judgment must include a provision that the parties have been advised of the provisions of Section 240(1-b) of the Domestic Relations Law and New York Family Court Act §413(1)(b). An agreement which opts out of the law must also contain a provision that the parties have been advised that the "basic child support obligation" provided in New York Domestic Relations Law §240(1-b) and New York Family Court Act §413(1)(b) "would presumptively result in the correct amount of child support to be awarded." In the event that the Agreement or Stipulation deviates from the "basic child support obligation,” the Agreement or Stipulation must specify the amount that the "basic child support obligation." would have been and the reason or reasons that such Agreement or Stipulation does not provide for payment of that amount. These provisions may not be waived by either party or counsel.
The failure to include such a clause in an "opting-out" agreement is fatal.
Unlike the provisions of the Child Support Standards Act, Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b) permit the parties to “opt out “of the three year or fifteen percent threshold for modification of a child support order “in a validly executed agreement or stipulation,” without a provision that the parties have been advised of any specific provisions of the Domestic Relations Law or Family Court Act. Nor is there any requirement that the Agreement or Stipulation must specify the reason or reasons that they are opting out of the provisions of Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b).
Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b) provide that “unless the parties have specifically opted out of the following provisions in a validly executed agreement or stipulation entered into between the parties, the court may modify an order of child support where: (A) three years have passed since the order was entered, last modified or adjusted; or (B) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted.”
We suggest the following opting out clause:
“In accordance with the provisions of Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b) the parties to this (agreement) (stipulation) have specifically opted out of the provisions of Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b) which provide that “the court may modify an order of child support where: (A) three years have passed since the order was entered, last modified or adjusted; or (B) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted. In the event that the provisions of Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b) are subsequently modified to add additional grounds or requirements for modification of an order of child support, this opting out provision shall apply to such additional grounds or requirements, and shall remain in full force and effect, to the extent permitted by law.
Does Boden Survive?
Existing statutory and case law distinguishes between modification of a child support provision in a court order or divorce judgment, where there is no surviving agreement, and modification of a child support provision in a separation agreement or stipulation, where there is a surviving separation agreement or stipulation.
Where there is merely a court order or judgment ordering child support the rule is that in order to have an award modified so as to increase or decrease payments for child support, a substantial change of circumstances must be shown to have occurred since the time of the entry of the order.
An agreement executed by the parties, which is fair and adequate when made and which provides support for children, confines the obligation of the non-custodial parent to that which is set forth in the agreement. Unless and until the agreement is set aside or modified, no other award may be made for child support. However, the parties cannot by agreement eliminate or diminish either parent’s duty to support a child of the marriage. A child is entitled to support, maintenance and education in accordance with his parent’s financial means and ability. Family Court Act §461(a) provides that a separation agreement does not diminish a parent’s duty to support his child, and the initial adequacy of the provisions of a separation agreement for the child may be challenged at any time.
Where there is a separation agreement or stipulation that is incorporated into but not merged with a divorce decree the agreement or stipulation is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law. Courts of this State enjoy only limited authority to disturb the terms of a separation agreement.
In Matter of Boden v. Boden, the Court of Appeals held: “Where, as here, the parties have included child support provisions in their separation agreement, the court should consider these provisions as between the parties and the stipulated allocation of financial responsibility should not be freely disregarded. It is to be assumed that the parties anticipated the future needs of the child and adequately provided for them. It is also to be presumed that in the negotiation of the terms of the agreement the parties arrived at what they felt was a fair and equitable division of the financial burden to be assumed in the rearing of the child. Included in these obligations is the financial responsibility of providing the child with adequate and reasonable educational opportunities. Absent a showing of an unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed. Unless there has been an unforeseen change in circumstances and a concomitant showing of need, an award for child support in excess of that provided for in the separation agreement should not be made based solely on an increase in cost where the agreement was fair and equitable when entered into.” In Boden, petitioner sought an increase in respondent's support obligations in order to help send the child to a costly private university even though respondent had honored his obligation under the separation agreement to provide for the child's education. The Court declined to modify the parties' “stipulated allocation of financial responsibility” absent a showing that an unanticipated or unreasonable change in circumstances occurred with a concomitant showing of need, or that the agreement was unfair when made.”
Boden was subsequently qualified in Brescia v Fitts, on the basis that the needs of a child must take precedence over the terms of the agreement when it appears that the best interests of the child are not being met. Recognizing this, the Court, in Brescia, established a means for modification of support obligations, based purely on a “needs of the child” analysis in order to determine whether there has been a sufficient showing to justify modification of the agreement. In Brescia, the Court of Appeals stated that a “different situation is presented, however, where it is the child's right to receive adequate support that is being asserted. Family Court's power regarding child support derives from the Family Court Act. Section 461 of that act, insofar as it related to the case, provides that the parents' duty to support their child is not diminished by the existence of, inter alia, a separation agreement or judgment of divorce and, in the absence of an order of Supreme Court directing support, Family Court may make an order of support. Thus, the principles iterated in Boden did not alter the scope of Family Court's power to order support where the dispute concerns the child's right to receive adequate support. In Brescia, the Petitioner introduced evidence tending to show, among other things, that the combination of her own income and the payments contributed by respondent did not adequately meet the children's needs. Specific items of expense were detailed, as well as petitioner's and respondent's respective financial situations. The Court of Appeals pointed out that whether the evidence adduced by the parties shows a change of circumstances sufficient for Family Court to order a modification was a question best left to the discretion of the lower courts, whose primary goal is, of course, to make a determination based upon the best interests of the children. Considering both the circumstances as they existed at the time of the prior award and at the time the application is made several factors may, in a proper case, enter into the determination, including the increased needs of the children due to special circumstances or to the additional activities of growing children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior life-styles of the children. Consideration of such factors in a given case may lead to the determination that the children's best interests require an upward modification of the child support award.”
In Gravlin v Ruppert the Court of Appeals held that the complete breakdown in the visitation arrangement, which effectively extinguished respondents' support obligation, constituted an unanticipated change in circumstances that created the need for modification of the child support obligations. It noted that, in Brescia it established a means for modification of support obligations, based purely on the needs of the child.
Separately, in Boden, it recognized the need for modification based on maintaining the fairness of the original agreement as between the parties in light of a subsequent unanticipated change in circumstances, or undoing an agreement that was unfair ab initio. In Gravlin, there was no showing that the child's needs were not being met. Thus, there was no reason to engage in a “needs of the child” analysis. The petitioner's income had increased to nearly $56,000 and respondent's was approximately $30,000. The increase in petitioner's expenses alone did not justify a modification. Nevertheless, the Court of Appeals concluded that the complete breakdown in the parties visitation arrangement, which effectively extinguished respondents' support obligation, constituted an unanticipated change in circumstances that created the need for modification of the child support obligations. Under the separation agreement, the parties anticipated that the child would spend approximately 35% of her time with her father-at his sole expense-until she reached majority or became emancipated, and he would in addition pay for her clothing. These expectations were part of the basis for the parties' agreement to deviate from CSSA. The unanticipated change in respondent's relationship with his daughter created a need for modification of the support terms of the separation agreement as those terms became unworkable. It was the necessity of ensuring that respondent continued to support his child as agreed upon by the parties, despite the inability to perform under the original terms of the agreement, that justified modification of the support provisions. Under the agreement, both parents assumed an obligation of support yet, after visitation broke down through no apparent fault of either party, only the custodial parent was providing support. The Court of Appeals held that under these circumstances the Family Court may reestablish the support obligation of the noncustodial parent by modifying the support provisions of the separation agreement.
The U.S. Constitution provides that the state may cannot impair the obligation of contract. Nevertheless Domestic Relations Law §236 [B][9][b], which was enacted in 1980, provides that the court may modify the maintenance portion of decree/order upon a showing of extreme hardship, and that it is a modification of the agreement for such time and under such circumstances at the court shall determine. This provision may be unconstitutional. In Busetti v Busetti, the Second Department, in construing the maintenance modification provisions contained in New York Domestic Relations Law §236(B)(9)(b), stated that paragraph (b) of Subdivision (9) purports to allow the court to, in effect, suspend the separation agreement for as long as necessary and to what extent necessary and, thus, precludes the party who is adversely affected by the modification from bringing a contract claim to recover the difference between the amount agreed to and the amount as modified. In a footnote, it stated that there was some question as to whether this is constitutional and cited Kleila v Kleila, decided only some two months before the effective date of the Equitable Distribution Law. There the Court of Appeals indicated that "any attempt to confer upon a court of any jurisdiction within the United State broad powers to modify the terms of a separation agreement might well run afoul of constitutional limitations upon the State’s power to tamper with vested contractual rights."
Domestic Relations Law §236 [B][9][b] does not contain similar language with respect to modification of child support where there is a surviving agreement because public policy permits the court to always modify the order where the child is being inadequately supported, and in certain circumstances it may declare the agreement or its child support provisions void, where it violates the public policy enunciated in the Child Support Standards Act.
Thus, in Priolo v Priolo, finding that the modification was in keeping with the "overriding policy of ensuring adequate child support," the Appellate Division concluded that "the terms of the settlement agreement must yield to the welfare of the children and cannot support an action to recover damages for breach of contract arising from the increase in the father’s child support obligation." In Pecora v Cerillo the court held that since children are not bound by separation agreements, one that does not provide adequate support for the parties’ child does not bind a court from remedying the inadequacy. Therefore, an inadequate child support provision "is voidable and cannot bind an appropriate court from remedying the inadequacy nor can it bind a parent from seeking to remedy the inadequacy.” It rejected that plaintiffs’ argument that it was unconstitutional under the impairment of contracts doctrine (U.S. Const. Art. 1 §10) to preclude a breach of contract action in such a case stating that a statute that is intended to prevent an economic wrong, in this case against the children, is not unconstitutional as impairing contract rights." In Maki v Straub the Appellate Division held that the terms of an inadequate child support provision in an agreement do not bind the court or the child and cannot support a civil action for breach thereof, and that the theory behind such an action was contrary to the public policy incorporated in the "Child Support Standards Act."
The first sentence of Domestic Relations Law § 236 [B](9)(b) (2) and Family Court Act § 451 (2)(b) now provide that the “court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. “
This language might, at first blush, appear to eliminate the rule enunciated in Boden v Boden that where there was a surviving agreement, a child support award in excess of that provided for in a separation agreement should not be made “[u]nless there has been an unforeseen change in circumstances and a concomitant showing of need”.
Actually, the first sentence of Domestic Relations Law § 236 [B](9)(b)(2) and Family Court Act § 451 appears to be a recognition of the rules enunciated in Boden, Brescia and Gravlin v Ruppert. In Boden, where there was a surviving agreement, the Court declined to modify the parties' “stipulated allocation of financial responsibility” absent a showing that an unanticipated or unreasonable change in circumstances occurred with a concomitant showing of need, where the agreement was fair when made.” The Court, in Brescia, where there was also a surviving agreement, established a needs test for modification of support obligations, where the child's right to receive adequate support is being asserted, based purely on a “needs of the child” analysis. In Brescia, the Petitioner introduced evidence tending to show, among other things, that the combination of her own income and the payments contributed by respondent did not adequately meet the children's needs. Specific items of expense were detailed, as well as petitioner's and respondent's respective financial situations. The principles iterated in Boden did not alter the scope of Family Court's power to order support where the dispute concerns the child's right to receive adequate support.
The prior rule in New York, where there was no surviving agreement, was unresolved. The Second Department held that an increase in the income of the supporting parent was sufficient to obtain an upward modification of child support. The other Departments held that a change in circumstances warranting an upward increase in child support must include an increase in the needs of the children as well as an increase in means of the supporting parent, and that an increase in income of the supporting parent alone was insufficient. This rule was adopted by the Court of Appeals in Boden v Boden, 42 NY2d 210 (1977). Domestic Relations Law § 236 [B](9)(b)(2) and Family Court Act § 451 do not eliminate this rule since they both permit the parties to opt out of these modification provisions, including the 15% change in income provision, by a surviving agreement or stipulation.
It does not appear to be intention of the legislature to overrule Boden v Boden and to allow the court to readjust the parties’ respective child support obligations in those situations where there is a surviving agreement, and the child is being adequately supported. As Brescia v Fitts tells us, “the principles iterated in Boden did not alter the scope of Family Court's power to order support where the dispute concerns the child's right to receive adequate support.” The legislative intent may be gleaned from the Assembly Memorandum, which states that the amendments to Domestic Relations Law § 236 [B](9)(b) and Family Court Act § 451 are intended to clarify portions of the Family Court Act to make it clear that a child support order may be modified upon a substantial change in circumstances, and harmonize the Family Court Act with the Domestic Relations Law. “This conforming change of including substantial change in circumstances as a basis for modification in the Family Court Act is not intended to alter existing case law regarding the standard for modifications for orders incorporating but not merging separation agreements. “ (emphasis supplied)
If the legislature intended to enact a statute specifically overruling Boden, the Assembly Memorandum would have mentioned the Boden decison in the memorandum or that statute would state that so.
The New York State Assembly Memorandum in support of the legislation, states that the amendments to Domestic Relations Law § 236 [B](9)(b) and Family Court Act § 451(2) are intended to clarify portions of the Family Court Act to make it clear that a child support order may be modified upon a substantial change in circumstances and harmonize the Family Court Act with the Domestic Relations Law. The memorandum specifies that “This conforming change of including substantial change in circumstances as a basis for modification in the Family Court Act is not intended to alter existing case law regarding the standard for modifications for orders incorporating but not merging separation agreements”
The Assembly Memorandum refers to the fact that the amendments to Domestic Relations Law § 236 [B](9)(b) and Family Court Act § 451(2) provide for two additional bases, for obtaining a review of an order of child support: the passage of three years or a 15 percent change in a party's income since the order was entered, last modified or adjusted. The Assembly Memorandum states that the intent of this measure is not to have these bases limit or define substantial change in circumstances, nor is the intent to supersede case law interpreting substantial change of circumstances as a standard for modification. The additional bases are not intended to be considered as necessary threshold requirements for modification of child support on the basis of a substantial change of circumstances. The amendments are intended to continue to allow evidence of a substantial change in circumstances as permitted under existing case law for modification. The legislation is intended to adopt and conform the rule found in the existing body of case law in order to clarify that a reduction in income may not be considered even under the new 15 percent change in income basis unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience.
Clarification of Knights v Knights
Domestic Relations Law § 236 [B](9)(b) (2)(i) and Family Court Act § 451 (2)(i) provide that: “Incarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. This sentence is not part of the modification provisions of Domestic Relations Law § 236 [B](9)(b) (2)(ii) and Family Court Act § 451 (2)(ii). It appears in subdivision (i) of the statute and follows the sentence: “The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances.”
In Knights v Knights the Court of Appeals held that the Family Court did not abuse its discretion in denying the petitioner’s application for a downward modification of child support following his conviction of a felony resulting in a prison sentence. The court had concluded that it would be unfair for an individual who had freely chosen to commit a crime to be relieved from the accrual of a support obligation. The court concluded that the order should remain in effect, and during the period of petitioner’s release it would determine whether to enter judgment for the entire amount due or forgive part of the arrears that had accumulated since the filing of the application. It held that in exercising its discretion to modify a prior support order the court may consider various factors including "a loss of income or assets by a parent . . ." The Court of Appeals held that the court may consider whether a supporting parent’s claimed financial difficulties are the result of that parent’s intentional conduct. Here, it found the significant the fact that the petitioner’s financial hardship was solely the result of his wrongful conduct culminating in a felony conviction and imprisonment. Thus, Family Court did not abuse its discretion.
The Assembly Memorandum in support of the legislation states that the amendments to Domestic Relations Law § 236 [B](9)(b) and Family Court Act § 451 (2) provide that incarceration is not a ban to a finding of a substantial change in circumstances and is intended to address the impact of the New York State Court of Appeals decision in Knights v. Knights, 71 N.Y.2d 865 (1983), and thereby clarify that a court may modify an order of child support where a party has been incarcerated considering the circumstances of the case, provided, however, that the incarceration is not the result of nonpayment of child support or an offense against the custodial parent or child who is the subject of the order or judgment of child support. This statement appears to indicate that the court may not modify a child support order where the incarceration is the result of nonpayment of child support or an offense against the custodial parent.
Family Court Act § 461
Family Court Act § 461 was amended to reflect the two new bases for modification of an order of child support.
Retroactivity
The legislation adopting these amendments on July 15, 2010, provides, with regard to the modification provisions, that: “This act shall take effect on the ninetieth day after it shall have become law; provided however, that sections six and seven of this act shall apply to any action or proceeding to modify any order of child support entered on or after the effective date of this act except that if the child support order incorporated without merging a valid agreement or stipulation of the parties, the amendments regarding the modification of a child support order set forth in sections six and seven of this act shall only apply if the incorporated agreement or stipulation was executed on or after this act's effective date. “ The act's effective date is therefore October 13, 2010.
Thus, the modification provisions apply to any action or proceeding to modify any order of child support entered on or after October 13, 2010, and if a child support order incorporated a surviving agreement or stipulation of the parties, the amendments regarding the modification of a child support order only apply if the incorporated agreement or stipulation was executed on or after October 13, 2010.
Notably, the Assembly Memorandum states that the “substantial change in circumstances threshold” in the amendments to Domestic Relations Law § 236 [B](9)(b) and Family Court Act § 451 is intended to apply prospectively to all orders of child support. If the order incorporates but does not merge a stipulation or settlement agreement, the amendment would be effective only if the stipulation or agreement was executed on or after the effective date of the amendment. Parties who have consented or will consent to deviations from the basic child support order calculated under the Child Support Standards Act would be protected. The Amendments are not intended to affect vested rights under existing valid separation agreements or stipulations.
Notice Requirement
Domestic Relations Law § 236 [B](7) was amended to add a new subdivision (d). It 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.
Similarly, Family Court Act § 440 was amended to add a subdivision 4. It 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.
Authorization to Require Non-custodial Parent to Seek Employment
Family Court Act § 437-a was 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.
The Assembly Memorandum indicates that Family Court Act § 437-a is added to permit the Family Court to require an unemployed non-custodial parent to seek employment, participate in job training, employment counseling or other programs designed to lead to employment at the time an order is established. Noncustodial parents in receipt of SSI or SSD may not be required to participate in such employment programs. It states that this provision is not intended to limit the non-custodial parent's obligation to support his or her child, nor curtail the court's obligation to set a fair and reasonable child support obligation in accordance with the Child Support Standards Act.
Social Services Law § 111-h was amended to add a paragraph (20) which provides 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. Social Services Law § 111-h provides that no modification of the order would be sought for 12 months from the date of entry of the order if a non-custodial parent is or was enrolled in work programs or activities and the order of support is payable to a local department of social services pursuant to an assignment.
These provisions are effective October 13, 2010, except that 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.
Friday, September 24, 2010
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.
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.
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.
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