New Computer Programs For New York Divorce Attorneys and Mediators

The New York Divorce and Family Law ™ Agreement Creator, quickly drafts a professional agreement for you in no time. It contains a separate on-screen manual, written by Joel R. Brandes, entitled "Drafting Agreements for the New York Divorce and Family Law Attorney". It costs $549.00 for the first license. Each additional license costs $199.00.

The New York and Family Law™ Marital Property Distributor, which contains an on-screen “Guide to the Equitable Distribution Law”, written by Joel R. Brandes, calculates, on a "what if" basis, the total value of each spouses' share of the marital assets. This program allows the user to re-distribute marital property to any percentage, and has the unique "auto-balancer" function which automatically distributes a selected asset between the parties to create a total 50-50 asset balance. It costs $99.00.

The New York Divorce and Family Law™ Child Support Calculator, contains an on-screen “Guide to the Child Support Standards Act”, written by Joel R. Brandes. It automatically generates a helpful summary report, calculates the child support amount on combined parental income, over $130,000, and drafts for you the language required to be included in agreements, stipulations, and findings of fact. It costs $199.00. Each additional license after three licenses costs $99.00.
The New York Divorce and Family Law™ Temporary Maintenance Calculator, contains an on-screen "Guide to the Temporary Maintenance Guidelines" written by Joel R. Brandes. It automatically generates a detailed report showing each step of the temporary maintenance calculation required by the new law. As you enter the parties incomes into the program, the " income entry" screen calculates the "presumptive amount" of temporary maintenance, so that you can try a range of scenarios and immediately see the outcome. It costs $199.00. Each additional license after three licenses costs $99.00.

The Court of Appeals amended its Rules of Practice effective December 8, 2010 .

Former section 500.2 was repealed in its entirety and a new section 500.2 was substituted for it. Sections 500.11, 500.12, 500.14 and 500.23 were amended. The number of paper copies of records, appendices and briefs has been reduced to 20 instead of the current 25 for normal coursed appeals and certified question reviews. In addition, parties are required to file on disk digital versions of each paper filing. Appeals to be considered under section 500.11 of the Rules are subject to a similar digital filing requirement. The companion briefs and record material in digital format must comply with the current "technical specifications" available from the clerk's office. The requirements regarding submission in digital format apply to all appeals for which the preliminary appeal statement is filed on or after the December 8, 2010 effective date.



Family Court Has Subject Matter Jurisdiction over Family Offense Proceedings Where Alleged Acts Occurred Outside State

In Matter of Richardson v Richardson, --- N.Y.S.2d ----, 2010 WL 4366892 (N.Y.A.D. 2 Dept.) the Appellate Division, in an opinion by Judge Levanthal, held that the Family Court has subject matter jurisdiction over family offense proceedings where the alleged acts occurred outside of the state and even outside of the country. It held that Family Court t Act §812 grants the Family Court subject matter jurisdiction to hear such proceedings and that the Family Court properly exercised jurisdiction over the parties' petitions, despite the fact that the acts alleged occurred on the island territory of Anguilla. On March 4, 2009, Annette P. Richardson and her sons Aaron J. Hourie and Andrew G. Hourie (respondents) filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against Dorothy E. Richardson (appellant), Annette's mother, and her sons' grandmother. The alleged family offenses included, inter alia, assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home in Elmont, Nassau County. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla. According to the respondents, the appellant pushed Annette to the floor twice, causing her to hurt her back and hit her head. The appellant allegedly was screaming, yelling, and cursing at Annette during the assault. In addition, the appellant allegedly used a glass bowl to strike Andrew on the head, causing injuries. Further, the appellant allegedly chased Aaron with a meat cleaver and threw an ashtray at him, which hit him in the back. On March 6, 2009, the appellant filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. The appellant alleged that on or about February 14, 2009, also in Anguilla, the respondents committed the family offenses of, inter alia, aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree. During an initial appearance before the Family Court, the appellant's counsel objected to the court's exercise of subject matter jurisdiction because the alleged offenses occurred in Anguilla. The Family Court held that "the fact that this took place in the West Indies is no different from it taking place in Pennsylvania, Virginia, or Vermont. They're [all residents] of Nassau County and they're entitled to protection from future occurrences. Family Orders of Protection… are to prevent further hostility and further assault, attempted assault,… et cetera."On June 24, 2009, after a hearing, the Family Court found that the respondents proved by clear and convincing evidence that the appellant had committed certain family offenses against them and granted the respondents' respective petitions. The Family Court also entered three two-year orders of protection on behalf of the respondents and against the appellant. The orders of protection directed the appellant to stay away from each of the respondents and to refrain from assaulting, stalking, and similar conduct. In addition, the Family Court issued three orders of dismissal which dismissed the appellant's three petitions. As a threshold matter, the court held that Family Court acquired personal jurisdiction over the appellant, as she appeared before the Family Court without challenging personal jurisdiction. Additionally, the appellant affirmatively sought the entry of orders of protection against the respondents (citing Family Ct Act §167; CPLR 320; cf. Matter of El-Sheemy v. El-Sheemy, 35 AD3d 738 [by appearing in article 6 proceeding and seeking custody, the mother waived her claim that the Family Court did not acquire personal jurisdiction over her]). It indicated that appellant's contentions provided the Court with an opportunity to address an issue which did not appear to have been previously addressed by an appellate court in this state: the limits of the subject matter jurisdiction of the Family Court with respect to family offenses which occurred outside of the state, and even outside of the country. In its analysis the court started with the proposition that the Family Court is a court of limited jurisdiction constrained to exercise only those powers conferred upon it by the state Constitution or by statute. Family Court Act §812(2)(b) provides: "[t]hat a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection." Here, the plain language of Family Court Act §812 provides that the Family Court has jurisdiction over family offense proceedings where the petitions allege the commission of certain proscribed acts that occur between spouses or former spouses, or between parent and child or between members of the same family or household. There is no geographic limitation in Family Court Act §812, or elsewhere in the Family Court Act, as to where a family offense is to have occurred in order to confer subject matter jurisdiction upon the Family Court. The next issue was whether the geographic or territorial limitation on the jurisdiction of the criminal court (see generally People v. McLaughlin, 80 NY2d 466, 472 [stating that "for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State"]) also limits the jurisdiction of the Family Court. Criminal Procedure Law §20.40(1)(a) provides, in pertinent part, that "[a] person may be convicted in an appropriate criminal court of a particular county, of an offense… when [c]onduct occurred within such county sufficient to establish [a]n element of such offense." The Appellate Division pointed out that Family Court is not a criminal court. Whereas the criminal court's subject matter jurisdiction over family offenses is limited by geography, there is no statutory provision which states that such a geographic limitation also applies to the Family Court. Nothing in the state Constitution, Family Court Act §812, or the legislative history of Family Court Act article 8 requires the predicate acts of a family offense to have occurred in a particular county, state, or country in order for the Family Court to possess subject matter jurisdiction. It noted that its decision was generally consistent with various decisions of the Family Court. However, it held that to the extent that those cases relied upon a "minimum contacts analysis," or suggest that a residual injury within this state is necessary in order to confer subject matter jurisdiction upon the Family Court pursuant to New York's long arm statute (see CPLR 302), such reasoning should not be followed.



Mother Held In Contempt for Violating Anti-Alienation Provision of Judgment.

In Rubin v Rubin, --- N.Y.S.2d ----, 2010 WL 4539522 (N.Y.A.D. 2 Dept.) the parties October 30, 2003 stipulation of settlement was incorporated, but not merged, into their judgment of divorce dated March 26, 2004. With respect to custody and visitation, the stipulation of settlement provided that the parties would share legal custody of the two children, that the mother would have sole physical custody of the children, and that the father would have certain visitation. In addition, pursuant to those provisions, each party was specifically prohibited from doing anything that would have the effect of alienating the children from the other party. The Appellate Division affirmed an order which held the mother in contempt for failure to comply with this provision. It held that to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights. Where, a period of incarceration is imposed to vindicate the authority of the court or to compel respect for the court's mandate, the contemnor's willful violation of the court's mandate must be proven beyond a reasonable doubt The father met this burden. At the hearing it was established, among other things, that the mother violated the custody and visitation provisions of the stipulation of settlement by intentionally doing certain things which would have the natural effect of "turn [ing]" the children "away from" the father, and which actually had that effect. However, under the particular facts of this case, a sentence directing the mother's immediate incarceration "would serve no purpose"and the court held that it was appropriate to suspend the sentence subject to the mother's future compliance with the custody and visitation provisions of the stipulation of settlement.



Child Support Payments May Be Suspended Where Noncustodial Parent Establishes Right of Reasonable Access to Child Unjustifiably Frustrated by Custodial Parent

In Thompson v Thompson, --- N.Y.S.2d ----, 2010 WL 4540329 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which granted the father's petition alleging a violation of a previous order of visitation and suspended the father's obligation to pay child support and related expenses regarding the child, nunc pro tunc from December 24, 2008, unless and until a determination was made that visitation between the father and the child has resumed. In January 2004 the father commenced a proceeding seeking visitation with the parties' who was born in 1996. After a hearing, by order entered January 11, 2006, the Family Court granted the father's petition for therapeutic visitation. On appeal, the Appellate Division modified that order by adding a directive that the father and the child submit to individual therapy (Matter of Thompson v. Yu-Thompson, 41 AD3d 487). Soon after the Family Court entered its order, the father filed a petition alleging violation of the order by the mother. Visits finally commenced in December 2006 and went well, but one month later, the father filed this petition alleging that the mother was not responding to repeated requests to schedule further visitations. During the proceedings on the petition, visitations resumed, but interactions between father and son became progressively more strained, with the child refusing to visit with his father at all or to engage with his father when visits did occur. After a hearing, the Family Court found that the child was so closely allied with his mother and her negative view of the father that "it appears that the hoped-for reconnection between [the child] and his father" was unlikely at that time. Finding that the mother had failed to encourage, and had interfered with, visitation, the Family Court granted the father's violation petition and suspended the father's child support payments until visitation resumes. The Appellate Division held that where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended. Such suspension of child support is warranted only where the custodial parent's actions rise to the level of 'deliberate frustration' or 'active interference' with the noncustodial parent's visitation rights. The evidence at the hearing supported the Family Court's finding that the mother deliberately frustrated the child's court-ordered visitation with his father such that suspension of child support payments until visitation resumed was warranted. There was evidence that the mother communicated her enmity towards the father to the child, made inappropriate disclosures concerning the parties' history, and failed to encourage and facilitate regular visitation, missing numerous scheduled visitations and ultimately supporting the child's decision to refuse visitation. The evidence supported the finding that the mother, by her example, her actions, and her inaction, deliberately frustrated visitation by manipulating the child's loyalty and orchestrating and encouraging the estrangement of father and son.

The Irretrievable Breakdown Ground for Divorce

The Irretrievable Breakdown Ground for Divorce
By Joel R. Brandes, Bari Brandes Corbin and Evan B. Brandes


Domestic Relations Law §170 was amended to add “irretrievable breakdown” in subdivision 7 as a ”no-fault ground” for divorce. It provides that a husband or wife may be granted a judgment or divorce on the ground that: “(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.”

In order to establish a cause of action and obtain a divorce under Domestic Relations Law §170 (7) the plaintiff must satisfy the residence requirements of Domestic Relations Law § 230, and, in addition, establish that: (1) the relationship between husband and wife is irretrievably broken; (2) for a period of at least six months; and (3) the plaintiff or defendant must state under oath that the relationship between husband and wife is irretrievably broken.

However, no judgment of divorce may be granted upon such a finding 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.

Where the parties to a contested action for a divorce have agreed that the divorce will be uncontested it has been the practice of New York courts to permit them to submit the matter to the court for determination upon affidavits and the required papers, or to hold an inquest on a fault ground. Where the papers were submitted, the court would reserve decision until the resolution of the ancillary issues. Where the court held an inquest, the court would grant a judgment of divorce, but hold the entry of the judgment in abeyance pending the resolution of the ancillary issues. The practice of granting the judgment and holding its entry into abeyance pending the resolution of the ancillary issues is not permitted under subdivision 7 which prohibits the granting of a judgment of divorce until all of the ancillary issues are resolved by the parties, or determined by the court and incorporated into the judgment of divorce. However, the court can still hear the testimony and reserve decision.

Irretrievable Breakdown Defined

The term “irretrievably broken” is not defined in the statute. Black's Law Dictionary states that “irretrievable breakdown of the marriage” is a ground for divorce that is based on incompatibility between marriage partners and that is used in many states as the sole ground of no-fault divorce. — Also termed irretrievable breakdown; irremediable breakdown of the marriage; irremediable breakdown. Cf. irreconcilable differences; incompatibility. However, it does not define the term which is different from “irreconcilable differences” which Black's Law Dictionary defines as “persistent and unresolvable disagreements between spouses, leading to the breakdown of the marriage. • These differences may be cited — without specifics — as grounds for no-fault divorce. At least 33 states have provided that irreconcilable differences are a basis for divorce. Cf. irretrievable breakdown of the marriage; incompatibility.”

An examination of the case law in other states which have adopted the “irretrievable breakdown” ground for divorce appear to indicate that a marriage has irretrievably broken down when the relationship is for all intents and
purposes ended. Where no guidelines are established as to what constitutes an irretrievable breakdown, courts consider each case individually, and the determination whether the marriage is broken must be based on an inquiry into all the surrounding facts and circumstances. In general, a marriage is irretrievably broken when, for whatever reason or cause and no matter whose fault, the marriage relationship is for all intents and purposes ended, when it is no longer viable, when the parties are unable, or refuse, to cohabit, or when it is beyond hope of reconciliation or repair. The principal question to be determined is whether the marriage is at an end and beyond reconciliation.

In some states irretrievable breakdown of a marriage may be sufficiently shown by both parties alleging the breakdown, or by one party seeking a divorce or dissolution on the ground of irretrievable breakdown, and the other seeking divorce or dissolution on a ground involving misconduct. In some states the decision that a marriage is irretrievably broken need not be based on any identifiable objective fact. It is sufficient that one or both parties subjectively decide that their marriage is over and there is no hope of reconciliation. Under one statute, where both parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after considering the statement and holding a hearing on the matter must make a finding whether or not the marriage is irretrievably broken and enter an order of dissolution or dismissal accordingly.

The consensus appears to be that the term “irretrievable breakdown” means a breakdown of the marriage to the point that reconciliation is not possible or probable. For example, Alabama ‘s statute requires a finding that “further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family. The Delaware statute requires a finding that reconciliation is improbable as proof that the marriage has irretrievably broken down. The Connecticut statute requires a period of separation “by reason of incompatibility” for a continuous period prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled.” The Illinois statute requires a period of separation and a finding that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. Kentucky laws provide that if one of the parties disputes that the marriage is irretrievably broken, the court must consider all relevant factors, including the prospect of reconciliation, and make a finding whether the marriage is irretrievably broken. The Wisconsin statute requires that the court find an irretrievable breakdown of the marriage with no possible chance at reconciliation.

The Uniform Marriage and Divorce Act § 305 (c) defines a finding of irretrievable breakdown as “a determination that there is no reasonable prospect of reconciliation.”

Some states couple the irretrievable ground with a period of separation of anywhere from sixty days to two years. For example Missouri law provides that if the defendant denies that the marriage is irretrievably broken, the plaintiff must prove one or more of what appear to be fault grounds, or that the parties have lived apart for 24 months. The Connecticut statute requires the parties to have lived apart by reason of incompatibility for a continuous period of at least the eighteen months.

Irretrievable breakdown has been adopted as a ground for divorce in the following 17 states: Alabama, Arizona , Colorado , Connecticut , Delaware , Florida , Georgia , Hawaii , Illinois , Indiana , Kentucky , Massachusetts , Minnesota, Missouri, Nebraska, Pennsylvania, and Wisconsin. However, none of the state laws define the term irretrievable breakdown.

Sufficiency of Proof and Defenses
It is clear from the statute that the court must find that the marriage is irretrievably broken as a predicate to the granting of a divorce. On its face Domestic Relations Law § 170(7) appears to allow the court to grant a judgment of divorce where one spouse states under oath that the relationship between husband and wife is irretrievably broken. This construction would eliminate any defenses to this ground. However, the authority in other jurisdictions which have adopted this ground for a divorce supports the conclusion that the defendant can raise the defense that the marriage is not irretrievably broken. Moreover, this construction does not eliminate the five year statute of limitations applicable to actions for a divorce. The Domestic Relations Law provides that no action for divorce may be maintained on a ground which arose more than five years before the date of the commencement of the action except where abandonment or separation pursuant to agreement or decree is the ground.
--------------------------------------------------------------------------------

However, in those states where irretrievable breakdown is a ground for divorce it has been held that the court presiding over an action for divorce on the ground of irretrievable breakdown has a duty to determine whether the marriage is, in fact, irretrievably broken.

The Low Income Support Obligation and Performance Improvement Act of 2010

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.

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.