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Temporary Maintenance Worksheet (for divorces started on or
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Temporary Maintenance Worksheet (for divorces started before
10/25/15)
Monday, May 23, 2016
Court of Appeals Holds That Consent to Record Conversation of Child with Another Person Includes Vicarious Consent, on Behalf of a Minor Child
In People v Badalamenti, 2016 WL 1306683 (2016) the Court of Appeals held that the definition of consent, in the context of “mechanical overhearing of a conversation” pursuant to Penal Law § 250.00(2), includes vicarious consent, on behalf of a minor child. It established a “narrowly tailored” test for vicarious consent that requires a court to determine (1) that a parent or guardian had a good faith belief that the recording of a conversation to which the child was a party was necessary to serve the best interests of the child and (2) that there was an objectively reasonable basis for this belief. The Court cautioned that its holding should not be interpreted as a vehicle to attempt to avoid criminal liability for the crime of eavesdropping when a parent acts in bad faith and lacks an objectively reasonable belief that a recording is necessary in order to serve the best interests of his or her minor child. Penal Law § 250.05 and CPLR 4506 cannot be so easily circumvented. The procedural vehicles of pretrial hearings must be used to determine the admissibility of any recordings and will result in the suppression of any parent’s recording that a court determines did not meet the narrowly tailored and objective test. In making this admissibility determination, a court should consider the relevant factors, which include, but are not limited to, the parent’s motive or purpose for making the recording, the necessity of the recording to serve the child’s best interests, and the child’s age, maturity, and ability to formulate well-reasoned judgments of his or her own regarding best interests.
Second Circuit Holds that Intimate Partner Violence Is a Relevant Factor in Determining if Fees and Expenses are "Clearly Inappropriate"
In Souratgar v Fair, 2016 WL 1168733 (2d
Cir., 2016) the Second Circuit reversed a judgment ordering Respondent Lee Jen
Fair to pay to the prevailing petitioner-appellee, Abdollah Naghash Souratgar,
$283,066.62 in expenses under the International Child Abduction Remedies Act,
which directs district courts to issue such an order “unless the respondent
establishes that such order would be clearly inappropriate.” 22 U.S.C. §
9007(b)(3). It held that the determination requires district courts to
weigh relevant equitable factors, including intimate partner violence. Having
reviewed all relevant equitable factors, it concluded that, because the
respondent showed that the petitioner engaged in multiple, unilateral acts of
intimate partner violence against her and that her removal of the child from
the habitual country was related to that violence, and because there were no
countervailing factors in the record in favor of the petitioner, such an award
would be “clearly inappropriate.”
Court of Appeals Construes "Extended Disruption of Custody", in Domestic Relations Law § 72 (2), in Favor of Grandparents finding they have Standing to Seek Custody
In
Suarez v Williams, --- N.E.3d ----, 2015 WL 8788195 (N.Y.), 2015 N.Y. Slip Op.
09231, the Court of Appeals, in an opinion by Judge Leslie Stein, held that
grandparents may demonstrate standing to seek custody, pursuant to
Domestic Relations Law § 72 (2) and the Court’s decision in Matter of Bennett v
Jeffreys (40 NY2d 543 [1976]) based on extraordinary circumstances where
the child has lived with the grandparents for a prolonged period of time, even
if the child had contact with, and spent time with, a parent while the child
lived with the grandparents. In addition, a parent need not relinquish all care
and control of the child. Even if the parent exercises some control over the
child, for example during visitation, a parent may still, as a general matter,
have voluntarily relinquished care and control of the child to the grandparent
to the extent that the grandparent is, in essence, acting as a parent with
primary physical custody.
Laws of 2015 Affecting the Practice of Matrimonial Law
Laws
of 2015, Chapter 572 amended CPLR 2103 effective January 1, 2016.
CPLR 2103(b)(2) was amended to provide that where a period of time prescribed by law is measured from the service of a paper and service is made by mail outside of the state of New York, but within the geographic boundries of the United States, six days shall be added to the prescribed period. The definition of mailing in CPLR 2103(f)(1) was amended to authorize mailing in the United States, rather than the state of New York.
CPLR 2103(b)(2) was amended to provide that where a period of time prescribed by law is measured from the service of a paper and service is made by mail outside of the state of New York, but within the geographic boundries of the United States, six days shall be added to the prescribed period. The definition of mailing in CPLR 2103(f)(1) was amended to authorize mailing in the United States, rather than the state of New York.
The purpose of the amendment was so that the rule for mailing service would correspond with that for overnight delivery service in CPLR 2103(b)(6). The Sponsors memorandum in support of the legislation also noted a decision by the Appellate Division, First Department, holding the service by mail made outside the State was insufficient (M. Entertainment, Inc. v. Leydier, 62 A.D.3d 627 (reversed on other grounds, 13 N.Y.3d 827). The amendment authorizes service by mail outside the state, but within the geographical boundries of the United States.
Laws of 2015, Chapter 567 (effective June 18, 2016)
Domestic Relations Law§ 240, subdivision 1 (a) was amended and subdivision (c-1) was added to Family Court Act § 651 (c-1). The purpose of the legislation was to underscore that custody standards apply in cases where custody and visitation petitions brought under these sections are heard jointly with child protective dispositional or permanency hearings in Family Court under Article 10 or 10-A of the Family Court Act.
The following provision was inserted into Domestic Relations Law§ 240 subdivision 1 (a):
Where a proceeding filed pursuant to article ten or ten-A of the family court act is pending at the same time as a proceeding brought in the supreme court involving the custody of, or right to visitation with, any child of a marriage, the court presiding over the proceeding under article ten or ten-A of the family court act may jointly hear the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of the family court act and, upon referral from the supreme court, the hearing to resolve the matter of custody or visitation in the proceeding pending in the supreme court; provided however, the court must determine custody or visitation in accordance with the terms of this section.
The following provision was added to Family Court Act §651:
(c–1) Where a proceeding filed pursuant to article ten or ten-A of this act is pending at the same time as a proceeding brought in the family court pursuant to this article, the court presiding over the proceeding under article ten or ten-A of this act may jointly hear the hearing on the custody and visitation petition under this article and the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of this act; provided, however, the court must determine the custody and visitation petition in accordance with the terms of this article.
Laws
of 2015, Ch 447
Laws
of 2015, Ch 447 amended Domestic Relations Law §237 (a) effective November
20, 2015, and applicable to all actions whenever commenced, to provide
that an unrepresented litigant shall not be required to file an
affidavit detailing fee arrangements when making
an application for an award of
counsel fees and expenses. However, as a condition precedent to not being
required to file such affidavit the unrepresented litigant must have submitted
an affidavit that he or she is unable to afford
counsel with supporting proof, including a statement of net worth, and,
if available, W-2 statements and income tax
returns for himself or herself.
According
to the New York Assembly Memorandum in Support of the Legislation the purpose
of the amendment was “to make clear that indigent pro se litigants may make an
application for an award of fees necessary to obtain counsel without the formal
requirement of an affidavit detailing fee arrangements with counsel, provided
proof has been submitted of an inability to afford counsel.”
See
Laws of 2015, Ch 269, which provides that section three of the act, which
amended Domestic Relations Law 235[B][5-a] dealing with Temporary Maintenance
Awards, “ shall take effect on the thirtieth day after it shall have become a
law and shall apply to matrimonial actions commenced on or after such effective
date.” The other sections of the Act are effective January 23, 2016.
Laws
of 2015, Ch 387, approved October 26, 2015, effective January 24, 2016.
The statutory provisions for child
support have been amended to reflect the fact that spousal maintenance is money
no longer available as income to the payor, but constitutes income to the
payee, so long as the order or agreement for such maintenance lasts.
Domestic Relations Law § 240(1-b)(5)(iii) and Family Court Act §
413(1)(b)(5)(iii) were amended to add a new subclause (I) to each that requires
that alimony or spousal maintenance actually paid to a spouse who is a party to
the action must be added to the recipient spouse's income, provided that the
order contains an automatic adjustment to take effect upon the termination of
the maintenance award. According to the New York Assembly Memorandum in Support
of Legislation this addition would be based upon an amount already paid, e.g.,
an amount reported on the recipient spouse's last income tax return, and would
not simply be an estimate of future payments.
Domestic Relations Law § 240(1-b)(5)(vii)(C) and Family Court Act §
413(1)(b)(5)(vii)(C) were amended to clarify that, where spousal maintenance
payments are deducted from the payor's income, the order must contain a
specific provision adjusting the child support amount automatically upon the
termination of the spousal maintenance award. According to the New York
Assembly Memorandum in Support of Legislation this relieves the custodial
parent of the burden of moving for a modification of the child support order
upon the termination of maintenance but leaves open the possibility for either
or both parties to seek a modification of the automatic adjustment if, at the
point where maintenance terminates, the income of either of the parties has
changed in an amount that would qualify for modification under Family Court Act
§ 451(3)(b)(ii) or Domestic Relations Law § 236B(9)(b)(2)(ii), e.g., in excess
of 15% or a lapse of three years or more. The specific adjustment in the amount
of child support is without prejudice to either party's right to seek a
modification in accordance with Family Court Act § 451(3) or Domestic Relations
Law § 236B(9)(b)(2) with the proviso that in a subsequent action for
modification, the inclusion of the specific adjustment shall not by itself
constitute a "substantial change of circumstances."
Laws of 2015, Ch 347, § 1 amended Social Services Law § 111-i to align the
timing of the adjustment of the Combined Parental Income Adjustment with the
adjustment of the poverty income guidelines amount for a single person and the
self-support reserve.
Laws
of 2015, Ch 369
Laws
of 2015, Ch 369, § 2 repealed Article 5-B of the Family Court Act and enacted
the 2008 version of the Uniform Interstate Family Support Act (UIFSA) as a new
Article 5-B of the Family Court Act. Chapter 369 was signed into law on
September 25, 2015. Section 1 is effective on December 24, 2015. New Article
5-B to the Family Court Act applies to any action or proceeding filed or order
issued on or before the effective date of new Article 5-B, consistent with new
section 580-903 of the Family Court Act which shall be effective on January 1,
2016.
Laws
of 2015, Ch 269
Laws
of 2015, Ch 269 amended Domestic Relations Law §236 [B][1][a], Domestic
Relations Law §236 [B][5][d][7], Domestic Relations Law §236 [B][6], Domestic
Relations Law § 248, Domestic Relations Law §236 [B][9][1], Family Court Act §
412, effective January 23, 2016, and amended Domestic Relations Law § 236
[B][5-a], effective October 25, 2015.
Summary
of the Amendments
The amendments eliminated “enhanced earning capacity as a marital asset” for
purposes of equitable distribution (Domestic Relations Law §236 [B] [5] [d]
[7]) but did not eliminate as a factor the direct or indirect contributions to
the development during the marriage of the enhanced earning capacity of the
other spouse. They adopted mandatory guidelines with formulas for the
calculation of maintenance and spousal support awards, (Domestic Relations Law
§236 [B] [6] and Family Court Act § 412), added actual or partial retirement as
a ground for modification of post-divorce maintenance where it results in a
substantial diminution of income. (Domestic Relations Law §236 [B] [9] [1]) and
made Domestic Relations Law § 248 gender neutral.
Income Cap Lowered
The amendments lowered the income cap for the formula portion of temporary
maintenance awards, (Domestic Relations Law § 236 [B] [5-a]) from the current
$543,000 to $175,000 of the payor's income.
An income cap of $175,000 cap applies to post-divorce maintenance awards and
spousal support awards.
Temporary Maintenance
There is a new formula for determining temporary maintenance.
In determining temporary maintenance, the
court can allocate the responsibility for payment of specific family expenses
between the parties.
The temporary maintenance award must terminate no later than the issuance of a
judgment of divorce or the death of either party. This amendment is intended to
clarify that the Supreme Court has the power to limit the duration of temporary
maintenance.
New
Formulas for Calculating Temporary Maintenance, Post-Divorce Maintenance and
Spousal Support
There are now mandatory formulas for the
calculation of maintenance and spousal support awards.
There are two formulas to be used in
calculating maintenance and spousal support: one where child support will be
paid and where the temporary maintenance payor, post-divorce maintenance payor
or spousal support payor is also the non-custodial parent for child support
purposes; and one where child support will not be paid, or where it will be
paid but the temporary maintenance payor, post-divorce maintenance payor or
spousal support payor is the custodial parent for child support purposes.
Those formulas are as follows:
a. With child support where the temporary maintenance payor, post-divorce
maintenance payor or spousal support payor is also the non-custodial parent for
child support purposes: (i) subtract 25% of the maintenance payee's income from
20% of the maintenance payor's income; (ii) multiply the sum of the maintenance
payor's income and the maintenance payee's income by 40% and subtract the
maintenance payee's income from the result; (iii) the lower of the two amounts
will be the guideline amount of maintenance;
b. Without child support, or with child
support but where the temporary maintenance payor, post-divorce maintenance
payor or spousal support payor is the custodial parent for child support
purposes: (i) subtract 20% of the maintenance payee's income from 30% of
the maintenance payor's income; (ii) multiply the sum of the maintenance
payor's income and the maintenance payee's income by 40% and subtract the
maintenance payee's income from the result; (iii) the lower of the two amounts
will be the guideline amount of maintenance.
Post-Divorce
Maintenance Guidelines
The definition of income for post-divorce maintenance includes income from
income-producing property that is being equitably distributed.
Factors the court may consider in
post-divorce maintenance now include termination of child support, and income
or imputed income on assets being equitably distributed.
There is an “advisory” durational formula for determining the duration of
post-divorce maintenance awards. However, nothing prevents the court from
awarding non-durational, post-divorce maintenance in an appropriate case. In
determining the duration of maintenance, the court is required to consider
anticipated retirement assets, benefits and retirement eligibility age.
Modification
of Post-Divorce Maintenance
Actual or partial retirement is a ground for modification of post-divorce
maintenance assuming it results in a substantial diminution of income.
Spousal
Support Guidelines for Family Court
Spousal support guidelines are established for Family Court using the
same two formulas set forth for maintenance guidelines, as follows: one where
child support will be paid and where the spousal support payor is also the
non-custodial parent for child support purposes; and one where child support
will not be paid, or where child support will be paid but the spousal support
payor is the custodial parent for child support purposes. The $175,000 income
cap applies.
The court may adjust the guideline amount
of spousal support up to the income cap where it finds that the guideline
amount of spousal support is unjust or inappropriate after consideration of one
or more factors, which shall be set forth in the court's written or on the
record decision.
Where there is income over the cap,
additional spousal support may be awarded after consideration of one or more
factors, which shall be set forth in the court's written or on the record decision.
A new factor for the court to consider in spousal support awards as well as
maintenance awards is termination of a child support award.
The Family Court may modify an order of spousal support upon a showing of a
substantial change in circumstances. Unless so modified, spousal support orders
set pursuant to the guidelines shall continue until the earliest to occur of a
written or oral stipulation/agreement on the record, issuance of a judgment of
divorce or other order in a matrimonial proceeding, or the death of either
party. This is not intended to change current law with respect to Family
Court's ability to terminate spousal support. (See NY Legis. Memo 237 (2015)).
Effective
Date
The amendments become effective January 25, 2015 and apply to all matrimonial
and Family Court actions for spousal support commenced on or after such
effective date, including the provisions regarding post-divorce maintenance and
spousal support awards. However, the provisions regarding temporary maintenance
take effect October 25, 2015.
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