AB 7645 Summary:

BILL NOA07645
 
SAME ASSAME AS S05678
 
SPONSORWeinstein
 
COSPNSRJaffee, Seawright, Simotas, Titus, Wright
 
MLTSPNSRBrennan, Cook, Gottfried, Hevesi
 
Amd SS236 & 248, Dom Rel L; amd S412, Fam Ct Act
 
Relates to the duration and amount of maintenance and of spousal support; establishes new formulas for the amount of maintenance and spousal support and factors the court can use to deviate from that amount.
Go to top    

AB 7645 Actions:

BILL NOA07645
 
05/20/2015referred to judiciary
05/28/2015reported referred to codes
06/08/2015reported referred to rules
06/10/2015reported
06/10/2015rules report cal.299
06/10/2015ordered to third reading rules cal.299
06/15/2015passed assembly
06/15/2015delivered to senate
06/15/2015REFERRED TO RULES
06/24/2015SUBSTITUTED FOR S5678
06/24/2015PASSED SENATE
06/24/2015RETURNED TO ASSEMBLY
09/15/2015delivered to governor
09/25/2015signed chap.269
Go to top

AB 7645 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7645
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 20, 2015
                                       ___________
 
        Introduced  by  M.  of  A. WEINSTEIN, JAFFEE, SEAWRIGHT, SIMOTAS, TITUS,
          WRIGHT -- Multi-Sponsored by -- M. of  A.  BRENNAN,  COOK,  GOTTFRIED,
          HEVESI  --  (at request of the Office of Court Administration) -- read
          once and referred to the Committee on Judiciary
 
        AN ACT to amend the domestic relations law and the family court act,  in
          relation  to  the  duration  and  amount of maintenance and of spousal
          support
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Paragraph  a of subdivision 1 of part B of section 236 of
     2  the domestic relations law, as amended by chapter 371  of  the  laws  of
     3  2010, is amended to read as follows:
     4    a.  The term "maintenance" shall mean payments provided for in a valid
     5  agreement between the parties or awarded by the court in accordance with
     6  the provisions of subdivisions five-a and six of this part, to  be  paid
     7  at  fixed  intervals for a definite or indefinite period of time, but an
     8  award of maintenance shall terminate upon the death of either  party  or
     9  upon  the  [recipient's]  payee's  valid  or  invalid  marriage, or upon
    10  modification pursuant to  paragraph  [(b)]  b  of  subdivision  nine  of
    11  [section  two  hundred  thirty-six  of] this part or section two hundred
    12  forty-eight of this chapter.
    13    § 2. Subparagraph 7 of paragraph d of  subdivision  5  of  part  B  of
    14  section  236 of the domestic relations law, as amended by chapter 281 of
    15  the laws of 1980 and as renumbered by chapter 229 of the laws  of  2009,
    16  is amended to read as follows:
    17    (7)  any  equitable  claim  to,  interest  in,  or  direct or indirect
    18  contribution made to the acquisition of such  marital  property  by  the
    19  party  not  having  title,  including  joint efforts or expenditures and
    20  contributions and services as a spouse, parent, wage earner and homemak-
    21  er, and to the career or career potential of the other party. The  court
    22  shall not consider as marital property subject to distribution the value
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10788-02-5

        A. 7645                             2
 
     1  of  a spouse's enhanced earning capacity arising from a license, degree,
     2  celebrity goodwill, or career enhancement.  However, in arriving  at  an
     3  equitable  division  of  marital  property, the court shall consider the
     4  direct  or indirect contributions to the development during the marriage
     5  of the enhanced earning capacity of the other spouse;
     6    § 3. Subdivision 5-a  of  part  B  of  section  236  of  the  domestic
     7  relations  law,  as added by chapter 371 of the laws of 2010, is amended
     8  to read as follows:
     9    5-a. Temporary maintenance awards. a. Except where  the  parties  have
    10  entered  into  an agreement [pursuant to subdivision three of this part]
    11  providing for maintenance pursuant to subdivision three of this part, in
    12  any matrimonial action the court, upon application  by  a  party,  shall
    13  make  its  award for temporary maintenance pursuant to the provisions of
    14  this subdivision.
    15    b. For purposes of this subdivision, the following  definitions  shall
    16  be used:
    17    (1) "Payor" shall mean the spouse with the higher income.
    18    (2) "Payee" shall mean the spouse with the lower income.
    19    (3)  "Length  of  marriage"  shall  mean  the  period from the date of
    20  marriage until the date of commencement of action.
    21    (4) "Income" shall mean[:
    22    (a)] income as defined in the child support standards act and codified
    23  in section two hundred forty of this article and  section  four  hundred
    24  thirteen of the family court act[; and
    25    (b)  income  from income producing property to be distributed pursuant
    26  to subdivision five of this part] without subtracting alimony or mainte-
    27  nance actually paid or to be paid to a spouse that is  a  party  to  the
    28  instant action pursuant to subclause (C) of clause (vii) of subparagraph
    29  five  of paragraph (b) of subdivision one-b of section two hundred forty
    30  of this article and subclause (C) of clause (vii) of  subparagraph  five
    31  of  paragraph (b) of subdivision one of section four hundred thirteen of
    32  the family court act and without subtracting spousal support paid pursu-
    33  ant to section four hundred twelve of such act.
    34    (5) "Income cap" shall mean up to and  including  [five  hundred]  one
    35  hundred  seventy-five  thousand  dollars  of  the payor's annual income;
    36  provided, however, beginning January thirty-first, two thousand [twelve]
    37  sixteen and every two years thereafter, the [payor's annual] income  cap
    38  amount  shall  increase  by  the  [product]  sum  of  the average annual
    39  percentage changes in the consumer price index for all  urban  consumers
    40  (CPI-U)  as published by the United States department of labor bureau of
    41  labor statistics for the prior two [year period] years multiplied by the
    42  then income cap and then rounded to the nearest  one  thousand  dollars.
    43  The  office  of  court  administration  shall  determine and publish the
    44  income cap.
    45    (6) "Guideline amount of temporary maintenance" shall mean  the  [sum]
    46  dollar  amount  derived  by  the application of paragraph c or d of this
    47  subdivision.
    48    (7) ["Guideline duration" shall mean the durational period  determined
    49  by  the  application  of  paragraph d of this subdivision] "Self-support
    50  reserve" shall mean the self-support reserve as  defined  in  the  child
    51  support  standards act and codified in section two hundred forty of this
    52  article and section four hundred thirteen of the family court act.
    53    (8) ["Presumptive award" shall mean the guideline amount of the tempo-
    54  rary maintenance award for the guideline duration prior to  the  court's
    55  application of any adjustment factors as provided in subparagraph one of
    56  paragraph e of this subdivision.

        A. 7645                             3

     1    (9)  "Self-support  reserve"  shall  mean  the self-support reserve as
     2  defined in the child support standards act and codified in  section  two
     3  hundred  forty  of this article and section four hundred thirteen of the
     4  family court act] "Agreement" shall have the same meaning as provided in
     5  subdivision three of this part.
     6    c. [The] Where the payor's income is lower than or equal to the income
     7  cap, the court shall determine the guideline amount of temporary mainte-
     8  nance  [in accordance with the provisions of this paragraph after deter-
     9  mining the income of the parties] as follows:
    10    (1) Where [the payor's income is up to and including the  income  cap]
    11  child  support  will  be paid for children of the marriage and where the
    12  payor as defined in this subdivision is also  the  non-custodial  parent
    13  pursuant to the child support standards act:
    14    (a)  the  court  shall  subtract  [twenty]  twenty-five percent of the
    15  payee's income [of the  payee]  from  [thirty]  twenty  percent  of  the
    16  payor's income [up to the income cap of the payor].
    17    (b) the court shall then multiply the sum of the payor's income [up to
    18  and  including  the income cap] and [all of] the payee's income by forty
    19  percent.
    20    (c) the court shall subtract the payee's income [of  the  payee]  from
    21  the amount derived from clause (b) of this subparagraph.
    22    (d)  the court shall determine the lower of the two amounts derived by
    23  clauses (a) and (c) of this subparagraph.
    24    (e) the guideline amount of temporary maintenance shall be the  [lower
    25  of  the  amounts]  amount  determined  by  [clauses  (a) and (c) of this
    26  subparagraph;] clause (d) of  this  subparagraph  except  that,  if  the
    27  amount  determined  by  clause  [(c)  of  this subparagraph] (d) of this
    28  subparagraph is less than or equal to  zero,  the  guideline  amount  of
    29  temporary maintenance shall be zero dollars.
    30    (f)  temporary  maintenance shall be calculated prior to child support
    31  because the amount of temporary maintenance shall be subtracted from the
    32  payor's income and added to the payee's income as  part  of  the  calcu-
    33  lation of the child support obligation.
    34    (2) Where [the income of the payor exceeds the income cap:
    35    (a)  the court shall determine the guideline amount of temporary main-
    36  tenance for that portion of the payor's income that is up to and includ-
    37  ing the income cap according to subparagraph one of this paragraph, and,
    38  for the payor's income in excess of the  income  cap,  the  court  shall
    39  determine  any  additional  guideline  amount  of  temporary maintenance
    40  through consideration of the following factors:
    41    (i) the length of the marriage;
    42    (ii) the substantial differences in the incomes of the parties;
    43    (iii) the standard of living of the  parties  established  during  the
    44  marriage;
    45    (iv) the age and health of the parties;
    46    (v) the present and future earning capacity of the parties;
    47    (vi) the need of one party to incur education or training expenses;
    48    (vii) the wasteful dissipation of marital property;
    49    (viii) the transfer or encumbrance made in contemplation of a matrimo-
    50  nial action without fair consideration;
    51    (ix)  the existence and duration of a pre-marital joint household or a
    52  pre-divorce separate household;
    53    (x) acts by one party against another that have inhibited or  continue
    54  to  inhibit  a  party's earning capacity or ability to obtain meaningful
    55  employment. Such acts include but are not limited to  acts  of  domestic

        A. 7645                             4

     1  violence  as provided in section four hundred fifty-nine-a of the social
     2  services law;
     3    (xi) the availability and cost of medical insurance for the parties;
     4    (xii)  the  care of the children or stepchildren, disabled adult chil-
     5  dren or stepchildren, elderly parents or in-laws that has  inhibited  or
     6  continues  to  inhibit  a  party's earning capacity or ability to obtain
     7  meaningful employment;
     8    (xiii) the inability of one party to obtain meaningful employment  due
     9  to age or absence from the workforce;
    10    (xiv)  the  need  to  pay  for exceptional additional expenses for the
    11  child or children, including, but not limited to,  schooling,  day  care
    12  and medical treatment;
    13    (xv) the tax consequences to each party;
    14    (xvi) marital property subject to distribution pursuant to subdivision
    15  five of this part;
    16    (xvii)  the  reduced  or  lost  earning  capacity of the party seeking
    17  temporary maintenance as a result of having foregone or  delayed  educa-
    18  tion, training, employment or career opportunities during the marriage;
    19    (xviii)  the contributions and services of the party seeking temporary
    20  maintenance as a spouse, parent, wage earner and homemaker  and  to  the
    21  career or career potential of the other party; and
    22    (xix) any other factor which the court shall expressly find to be just
    23  and proper.
    24    (b)  In  any  decision  made  pursuant to this subparagraph, the court
    25  shall set forth the factors it considered and the reasons for its  deci-
    26  sion.  Such written order may not be waived by either party or counsel.]
    27  child  support  will  not be paid for children of the marriage, or where
    28  child support will be paid for children of the marriage but the payor as
    29  defined in this subdivision is the  custodial  parent  pursuant  to  the
    30  child support standards act:
    31    (a) the court shall subtract twenty percent of the payee's income from
    32  thirty percent of the payor's income.
    33    (b)  the  court  shall then multiply the sum of the payor's income and
    34  the payee's income by forty percent.
    35    (c) the court shall  subtract  the  payee's  income  from  the  amount
    36  derived from clause (b) of this subparagraph.
    37    (d)  the court shall determine the lower of the two amounts derived by
    38  clauses (a) and (c) of this subparagraph.
    39    (e) the guideline amount of temporary maintenance shall be the  amount
    40  determined by clause (d) of this subparagraph except that, if the amount
    41  determined  by  clause (d) of this subparagraph is less than or equal to
    42  zero, the guideline  amount  of  temporary  maintenance  shall  be  zero
    43  dollars.
    44    (f) if child support will be paid for children of the marriage but the
    45  payor as defined in this subdivision is the custodial parent pursuant to
    46  the  child  support standards act, temporary maintenance shall be calcu-
    47  lated prior to child support because the amount of temporary maintenance
    48  shall be subtracted from the payor's income pursuant to this subdivision
    49  and added to the payee's income pursuant to this subdivision as part  of
    50  the calculation of the child support obligation.
    51    [(3)  Notwithstanding  the  provisions  of  this  paragraph, where the
    52  guideline amount of  temporary  maintenance  would  reduce  the  payor's
    53  income  below the self-support reserve for a single person, the presump-
    54  tive amount of the guideline amount of temporary  maintenance  shall  be
    55  the  difference between the payor's income and the self-support reserve.

        A. 7645                             5

     1  If the payor's income is below the  self-support  reserve,  there  is  a
     2  rebuttable presumption that no temporary maintenance is awarded.]
     3    d.  [The]  Where  the payor's income exceeds the income cap, the court
     4  shall determine the guideline [duration] amount of temporary maintenance
     5  [by considering the length of the marriage. Temporary maintenance  shall
     6  terminate  upon  the  issuance  of the final award of maintenance or the
     7  death of either party, whichever occurs first] as follows:
     8    (1) the court shall perform the calculations set forth in paragraph  c
     9  of  this subdivision for the income of the payor up to and including the
    10  income cap; and
    11    (2) for income exceeding the cap, the amount of additional maintenance
    12  awarded, if any, shall be within the discretion of the court which shall
    13  take into consideration any one or more of  the  factors  set  forth  in
    14  subparagraph one of paragraph h of this subdivision; and
    15    (3)  the  court  shall  set  forth  the  factors it considered and the
    16  reasons for its decision in writing or on  the  record.  Such  decision,
    17  whether  in  writing or on the record, may not be waived by either party
    18  or counsel.
    19    e. [(1) The court shall order the presumptive award of temporary main-
    20  tenance in accordance with paragraphs  c  and  d  of  this  subdivision,
    21  unless  the court finds that the presumptive award is unjust or inappro-
    22  priate and  adjusts  the  presumptive  award  of  temporary  maintenance
    23  accordingly based upon consideration of the following factors:
    24    (a)  the  standard  of  living  of  the parties established during the
    25  marriage;
    26    (b) the age and health of the parties;
    27    (c) the earning capacity of the parties;
    28    (d) the need of one party to incur education or training expenses;
    29    (e) the wasteful dissipation of marital property;
    30    (f) the transfer or encumbrance made in contemplation of a matrimonial
    31  action without fair consideration;
    32    (g) the existence and duration of a pre-marital joint household  or  a
    33  pre-divorce separate household;
    34    (h)  acts by one party against another that have inhibited or continue
    35  to inhibit a party's earning capacity or ability  to  obtain  meaningful
    36  employment.  Such  acts  include but are not limited to acts of domestic
    37  violence as provided in section four hundred fifty-nine-a of the  social
    38  services law;
    39    (i) the availability and cost of medical insurance for the parties;
    40    (j)  the care of the children or stepchildren, disabled adult children
    41  or stepchildren, elderly  parents  or  in-laws  that  has  inhibited  or
    42  continues  to  inhibit  a  party's earning capacity or ability to obtain
    43  meaningful employment;
    44    (k) the inability of one party to obtain meaningful employment due  to
    45  age or absence from the workforce;
    46    (l)  the need to pay for exceptional additional expenses for the child
    47  or children, including, but not limited  to,  schooling,  day  care  and
    48  medical treatment;
    49    (m) the tax consequences to each party;
    50    (n)  marital  property subject to distribution pursuant to subdivision
    51  five of this part;
    52    (o) the reduced or lost earning capacity of the party  seeking  tempo-
    53  rary  maintenance  as  a result of having foregone or delayed education,
    54  training, employment or career opportunities during the marriage;

        A. 7645                             6

     1    (p) the contributions and services  of  the  party  seeking  temporary
     2  maintenance  as  a  spouse, parent, wage earner and homemaker and to the
     3  career or career potential of the other party; and
     4    (q)  any  other factor which the court shall expressly find to be just
     5  and proper.
     6    (2) Where the court finds that  the  presumptive  award  of  temporary
     7  maintenance  is  unjust  or  inappropriate  and  the  court  adjusts the
     8  presumptive award of temporary maintenance pursuant to  this  paragraph,
     9  the  court  shall set forth, in a written order, the amount of the unad-
    10  justed presumptive  award  of  temporary  maintenance,  the  factors  it
    11  considered,  and  the  reasons  that  the court adjusted the presumptive
    12  award of temporary maintenance. Such written order shall not  be  waived
    13  by either party or counsel.
    14    (3)  Where  either  or both parties are unrepresented, the court shall
    15  not enter a temporary maintenance order unless the  unrepresented  party
    16  or  parties  have  been  informed  of the presumptive award of temporary
    17  maintenance] Notwithstanding the provisions of this  subdivision,  where
    18  the  guideline  amount of temporary maintenance would reduce the payor's
    19  income below the self-support reserve for a single person, the guideline
    20  amount of temporary maintenance shall  be  the  difference  between  the
    21  payor's  income  and the self-support reserve.  If the payor's income is
    22  below the self-support reserve, there shall be a rebuttable  presumption
    23  that no temporary maintenance is awarded.
    24    f.  [A  validly  executed agreement or stipulation voluntarily entered
    25  into between the parties in an action commenced after the effective date
    26  of this subdivision presented to the court for incorporation in an order
    27  shall include a provision stating that the parties have been advised  of
    28  the  provisions  of  this  subdivision,  and  that the presumptive award
    29  provided for therein results in the correct amount of temporary  mainte-
    30  nance. In the event that such agreement or stipulation deviates from the
    31  presumptive award of temporary maintenance, the agreement or stipulation
    32  must specify the amount that such presumptive award of temporary mainte-
    33  nance  would  have been and the reason or reasons that such agreement or
    34  stipulation does not provide for payment of that amount. Such  provision
    35  may not be waived by either party or counsel.  Nothing contained in this
    36  subdivision  shall  be  construed  to alter the rights of the parties to
    37  voluntarily enter into validly executed agreements or stipulations which
    38  deviate from the presumptive award  of  temporary  maintenance  provided
    39  such  agreements  or  stipulations  comply  with  the provisions of this
    40  subdivision.] The court shall[, however, retain discretion with  respect
    41  to  temporary,  and  post-divorce  maintenance  awards  pursuant to this
    42  section. Any court order incorporating a validly executed  agreement  or
    43  stipulation which deviates from the presumptive award of temporary main-
    44  tenance  shall  set forth the court's reasons for such deviation] deter-
    45  mine the duration of temporary maintenance by considering the length  of
    46  the marriage.
    47    g. [When a party has defaulted and/or the court is otherwise presented
    48  with  insufficient  evidence  to determine gross income, the court shall
    49  order the temporary maintenance award based upon the needs of the  payee
    50  or  the  standard  of living of the parties prior to commencement of the
    51  divorce action, whichever is greater. Such order  may  be  retroactively
    52  modified  upward  without  a  showing  of change in circumstances upon a
    53  showing of newly discovered or obtained evidence.] Temporary maintenance
    54  shall terminate no later than the issuance of the judgment of divorce or
    55  the death of either party, whichever occurs first.

        A. 7645                             7
 
     1    h. [In any action or proceeding for modification of an order of  main-
     2  tenance or alimony existing prior to the effective date of this subdivi-
     3  sion, brought pursuant to this article, the temporary maintenance guide-
     4  lines  set  forth  in  this subdivision shall not constitute a change of
     5  circumstances  warranting  modification  of  such support order] (1) The
     6  court shall order the guideline amount of temporary  maintenance  up  to
     7  the  income  cap  in  accordance  with  paragraph c of this subdivision,
     8  unless the court finds that the guideline amount  of  temporary  mainte-
     9  nance  is  unjust  or  inappropriate,  which finding shall be based upon
    10  consideration of any one or more of the following factors,  and  adjusts
    11  the  guideline  amount  of  temporary maintenance accordingly based upon
    12  such consideration:
    13    (a) the age and health of the parties;
    14    (b) the present or future earning capacity of the parties, including a
    15  history of limited participation in the workforce;
    16    (c) the need of one party to incur education or training expenses;
    17    (d) the termination of a child support award during  the  pendency  of
    18  the  temporary maintenance award when the calculation of temporary main-
    19  tenance was based upon child support being awarded and which resulted in
    20  a maintenance award lower than it would have been had child support  not
    21  been awarded;
    22    (e)  the wasteful dissipation of marital property, including transfers
    23  or encumbrances made in contemplation of a  matrimonial  action  without
    24  fair consideration;
    25    (f)  the  existence and duration of a pre-marital joint household or a
    26  pre-divorce separate household;
    27    (g) acts by one party against another that have inhibited or  continue
    28  to  inhibit  a  party's earning capacity or ability to obtain meaningful
    29  employment. Such acts include but are not limited to  acts  of  domestic
    30  violence  as provided in section four hundred fifty-nine-a of the social
    31  services law;
    32    (h) the availability and cost of medical insurance for the parties;
    33    (i) the care of children or stepchildren, disabled adult  children  or
    34  stepchildren,  elderly  parents  or in-laws provided during the marriage
    35  that inhibits a party's earning capacity;
    36    (j) the tax consequences to each party;
    37    (k) the standard of living  of  the  parties  established  during  the
    38  marriage;
    39    (l)  the  reduced or lost earning capacity of the payee as a result of
    40  having forgone or delayed  education,  training,  employment  or  career
    41  opportunities during the marriage; and
    42    (m)  any  other factor which the court shall expressly find to be just
    43  and proper.
    44    (2) Where the court finds that the guideline amount of temporary main-
    45  tenance is unjust or inappropriate and the court adjusts  the  guideline
    46  amount  of  temporary  maintenance pursuant to this paragraph, the court
    47  shall set forth, in a written decision or on the record,  the  guideline
    48  amount  of  temporary  maintenance,  the  factors it considered, and the
    49  reasons that the court adjusted the guideline amount of temporary  main-
    50  tenance.   Such decision, whether in writing or on the record, shall not
    51  be waived by either party or counsel.
    52    (3) Where either or both parties are unrepresented,  the  court  shall
    53  not  enter  a  temporary  maintenance order unless the court informs the
    54  unrepresented party or parties of  the  guideline  amount  of  temporary
    55  maintenance.

        A. 7645                             8
 
     1    i. [In any decision made pursuant to] Nothing contained in this subdi-
     2  vision  [the  court] shall[, where appropriate, consider the effect of a
     3  barrier to remarriage, as defined in  subdivision  six  of  section  two
     4  hundred  fifty-three  of this article, on the factors enumerated in this
     5  subdivision]  be  construed to alter the rights of the parties to volun-
     6  tarily enter into agreements or stipulations as defined  in  subdivision
     7  three of this part which deviate from the presumptive award of temporary
     8  maintenance.
     9    j.  When a payor has defaulted and/or the court is otherwise presented
    10  with insufficient evidence to determine income, the  court  shall  order
    11  the temporary maintenance award based upon the needs of the payee or the
    12  standard  of  living of the parties prior to commencement of the divorce
    13  action, whichever is greater. Such order may be  retroactively  modified
    14  upward  without  a  showing of change in circumstances upon a showing of
    15  newly discovered evidence.
    16    k. In any action or proceeding for modification of an order of mainte-
    17  nance or alimony existing prior to the effective date of  this  subdivi-
    18  sion, brought pursuant to this article, the temporary maintenance guide-
    19  lines  set  forth  in  this subdivision shall not constitute a change of
    20  circumstances warranting modification of such support order.
    21    l. In any action or proceeding for modification where the parties have
    22  entered into an agreement providing for maintenance pursuant to subdivi-
    23  sion three of this part entered into prior to the effective date of this
    24  subdivision, brought pursuant to this article, the temporary maintenance
    25  guidelines set forth in this subdivision shall not constitute  a  change
    26  of circumstances warranting modification of such support order.
    27    m.  In determining temporary maintenance, the court shall consider and
    28  allocate, where appropriate,  the  responsibilities  of  the  respective
    29  spouses for the family's expenses during the pendency of the proceeding.
    30    n.  The  temporary maintenance order shall not prejudice the rights of
    31  either party regarding a post-divorce maintenance award.
    32    § 4. Subdivision 6 of part B of section 236 of the domestic  relations
    33  law,  as  amended by chapter 371 of the laws of 2010, is amended to read
    34  as follows:
    35    6. Post-divorce maintenance awards. a. Except where the  parties  have
    36  entered  into  an  agreement  pursuant to subdivision three of this part
    37  providing for maintenance, in any matrimonial  action,  the  court  [may
    38  order],  upon  application by a party, shall make its award for post-di-
    39  vorce maintenance [in such amount as justice requires, having regard for
    40  the standard of living of the parties established during  the  marriage,
    41  whether the party in whose favor maintenance is granted lacks sufficient
    42  property  and  income  to  provide  for  his or her reasonable needs and
    43  whether the other party has sufficient property or income to provide for
    44  the reasonable needs of the other and the circumstances of the case  and
    45  of  the respective parties. Such order shall be effective as of the date
    46  of the application therefor, and any retroactive amount  of  maintenance
    47  due  shall  be  paid  in  one  sum  or periodic sums, as the court shall
    48  direct, taking into account any amount of  temporary  maintenance  which
    49  has been paid. In determining the amount and duration of maintenance the
    50  court shall consider:
    51    (1)  the income and property of the respective parties including mari-
    52  tal property distributed pursuant to subdivision five of this part;
    53    (2) the length of the marriage;
    54    (3) the age and health of both parties;
    55    (4) the present and future earning capacity of both parties;
    56    (5) the need of one party to incur education or training expenses;

        A. 7645                             9

     1    (6) the existence and duration of a pre-marital joint household  or  a
     2  pre-divorce separate household;
     3    (7)  acts by one party against another that have inhibited or continue
     4  to inhibit a party's earning capacity or ability  to  obtain  meaningful
     5  employment.  Such  acts  include but are not limited to acts of domestic
     6  violence as provided in section four hundred fifty-nine-a of the  social
     7  services law;
     8    (8)  the  ability of the party seeking maintenance to become self-sup-
     9  porting and, if applicable, the period of time  and  training  necessary
    10  therefor;
    11    (9)  reduced  or  lost  lifetime earning capacity of the party seeking
    12  maintenance as a result of having foregone or delayed education,  train-
    13  ing, employment, or career opportunities during the marriage;
    14    (10)  the presence of children of the marriage in the respective homes
    15  of the parties;
    16    (11) the care of the children or stepchildren, disabled adult children
    17  or stepchildren, elderly  parents  or  in-laws  that  has  inhibited  or
    18  continues to inhibit a party's earning capacity;
    19    (12) the inability of one party to obtain meaningful employment due to
    20  age or absence from the workforce;
    21    (13)  the  need  to  pay  for  exceptional additional expenses for the
    22  child/children, including but not limited to, schooling,  day  care  and
    23  medical treatment;
    24    (14) the tax consequences to each party;
    25    (15) the equitable distribution of marital property;
    26    (16)  contributions and services of the party seeking maintenance as a
    27  spouse, parent, wage earner and homemaker, and to the career  or  career
    28  potential of the other party;
    29    (17) the wasteful dissipation of marital property by either spouse;
    30    (18) the transfer or encumbrance made in contemplation of a matrimoni-
    31  al action without fair consideration;
    32    (19)  the  loss  of  health insurance benefits upon dissolution of the
    33  marriage, and the availability and cost of  medical  insurance  for  the
    34  parties; and
    35    (20)  any other factor which the court shall expressly find to be just
    36  and proper] pursuant to the provisions of this subdivision.
    37    b. [In any decision made pursuant to this subdivision, the court shall
    38  set forth the factors it considered and the reasons for its decision and
    39  such may not be waived by either party or counsel] For purposes of  this
    40  subdivision, the following definitions shall be used:
    41    (1) "Payor" shall mean the spouse with the higher income.
    42    (2) "Payee" shall mean the spouse with the lower income.
    43    (3) "Income" shall mean:
    44    (a)  income as defined in the child support standards act and codified
    45  in section two hundred forty of this article and  section  four  hundred
    46  thirteen of the family court act, without subtracting alimony or mainte-
    47  nance  actually  paid  or  to be paid to a spouse that is a party to the
    48  instant action pursuant to subclause (C) of clause (vii) of subparagraph
    49  five of paragraph (b) of subdivision one-b of section two hundred  forty
    50  of  this  article and subclause (C) of clause (vii) of subparagraph five
    51  of paragraph (b) of subdivision one of section four hundred thirteen  of
    52  the family court act and without subtracting spousal support paid pursu-
    53  ant to section four hundred twelve of such act; and
    54    (b)  income  from  income-producing  property  distributed  or  to  be
    55  distributed pursuant to subdivision five of this part.

        A. 7645                            10
 
     1    (4) "Income cap" shall mean up to and including one  hundred  seventy-
     2  five  thousand  dollars of the payor's annual income; provided, however,
     3  beginning January thirty-first, two thousand sixteen and every two years
     4  thereafter, the income cap amount shall increase by the sum of the aver-
     5  age  annual percentage changes in the consumer price index for all urban
     6  consumers (CPI-U) as published by the United States department of  labor
     7  bureau  of  labor  statistics  for the prior two years multiplied by the
     8  then income cap and then rounded to the nearest  one  thousand  dollars.
     9  The  office  of  court  administration  shall  determine and publish the
    10  income cap.
    11    (5) "Guideline amount of  post-divorce  maintenance"  shall  mean  the
    12  dollar  amount  derived  by  the application of paragraph c or d of this
    13  subdivision.
    14    (6) "Guideline duration of post-divorce maintenance"  shall  mean  the
    15  durational  period  determined by the application of paragraph f of this
    16  subdivision.
    17    (7) "Post-divorce maintenance guideline  obligation"  shall  mean  the
    18  guideline  amount of post-divorce maintenance and the guideline duration
    19  of post-divorce maintenance.
    20    (8) "Length of marriage" shall  mean  the  period  from  the  date  of
    21  marriage until the date of commencement of the action.
    22    (9)  "Self-support  reserve"  shall  mean  the self-support reserve as
    23  defined in the child support standards act and codified in  section  two
    24  hundred  forty  of this article and section four hundred thirteen of the
    25  family court act.
    26    (10) "Agreement" shall have the same meaning as provided  in  subdivi-
    27  sion three of this part.
    28    c. [The court may award permanent maintenance, but an award of mainte-
    29  nance shall terminate upon the death of either party or upon the recipi-
    30  ent's  valid or invalid marriage, or upon modification pursuant to para-
    31  graph b of  subdivision  nine  of  this  part  or  section  two  hundred
    32  forty-eight  of  this chapter] Where the payor's income is lower than or
    33  equal to the income cap, the court shall determine the guideline  amount
    34  of post-divorce maintenance as follows:
    35    (1)  Where child support will be paid for children of the marriage and
    36  where the payor as defined in this subdivision is also the non-custodial
    37  parent pursuant to the child support standards act:
    38    (a) the court shall subtract twenty-five percent of the payee's income
    39  from twenty percent of the payor's income.
    40    (b) the court shall then multiply the sum of the  payor's  income  and
    41  the payee's income by forty percent.
    42    (c)  the  court  shall  subtract  the  payee's  income from the amount
    43  derived from clause (b) of this subparagraph.
    44    (d) the court shall determine the lower of the two amounts derived  by
    45  clauses (a) and (c) of this subparagraph.
    46    (e)  the  guideline  amount  of  post-divorce maintenance shall be the
    47  amount determined by clause (d) of this subparagraph except that, if the
    48  amount determined by clause (d) of this subparagraph  is  less  than  or
    49  equal to zero, the guideline amount of post-divorce maintenance shall be
    50  zero dollars.
    51    (f)  notwithstanding  the  provisions  of  this subdivision, where the
    52  guideline amount of post-divorce maintenance would  reduce  the  payor's
    53  income below the self-support reserve for a single person, the guideline
    54  amount  of  post-divorce maintenance shall be the difference between the
    55  payor's income and the self-support reserve. If the  payor's  income  is

        A. 7645                            11
 
     1  below  the self-support reserve, there shall be a rebuttable presumption
     2  that no post-divorce maintenance is awarded.
     3    (g) maintenance shall be calculated prior to child support because the
     4  amount  of  maintenance  shall be subtracted from the payor's income and
     5  added to the payee's income as part of  the  calculation  of  the  child
     6  support obligation.
     7    (2) Where child support will not be paid for children of the marriage,
     8  or where child support will be paid for children of the marriage but the
     9  payor as defined in this subdivision is the custodial parent pursuant to
    10  the child support standards act:
    11    (a) the court shall subtract twenty percent of the payee's income from
    12  thirty percent of the payor's income.
    13    (b)  the  court  shall then multiply the sum of the payor's income and
    14  the payee's income by forty percent.
    15    (c) the court shall  subtract  the  payee's  income  from  the  amount
    16  derived from clause (b) of this subparagraph.
    17    (d)  the court shall determine the lower of the two amounts derived by
    18  clauses (a) and (c) of this subparagraph.
    19    (e) the guideline amount of  post-divorce  maintenance  shall  be  the
    20  amount determined by clause (d) of this subparagraph except that, if the
    21  amount  determined  by  clause  (d) of this subparagraph is less than or
    22  equal to zero, the guideline amount of post-divorce maintenance shall be
    23  zero dollars.
    24    (f) if child support will be paid for children of the marriage but the
    25  payor as defined in this subdivision is the custodial parent pursuant to
    26  the child support  standards  act,  post-divorce  maintenance  shall  be
    27  calculated  prior  to  child  support because the amount of post-divorce
    28  maintenance shall be subtracted from the payor's income pursuant to this
    29  subdivision and added to the payee's income pursuant to this subdivision
    30  as part of the calculation of the child support obligation.
    31    (g) notwithstanding the provisions  of  this  subdivision,  where  the
    32  guideline  amount  of  post-divorce maintenance would reduce the payor's
    33  income below the self-support reserve for a single person, the guideline
    34  amount of post-divorce maintenance shall be the difference  between  the
    35  payor's  income  and  the self-support reserve. If the payor's income is
    36  below the self-support reserve, there shall be a rebuttable  presumption
    37  that no post-divorce maintenance is awarded.
    38    d. [In any decision made pursuant to this subdivision the court shall,
    39  where  appropriate,  consider  the effect of a barrier to remarriage, as
    40  defined in subdivision six of section two hundred  fifty-three  of  this
    41  article,  on  the factors enumerated in paragraph a of this subdivision]
    42  Where the payor's income exceeds the income cap, the court shall  deter-
    43  mine the guideline amount of post-divorce maintenance as follows:
    44    (1)  the court shall perform the calculations set forth in paragraph c
    45  of this subdivision for the income of payor  up  to  and  including  the
    46  income cap; and
    47    (2) for income exceeding the cap, the amount of additional maintenance
    48  awarded, if any, shall be within the discretion of the court which shall
    49  take  into  consideration  any  one  or more of the factors set forth in
    50  subparagraph one of paragraph e of this subdivision; and
    51    (3) the court shall set  forth  the  factors  it  considered  and  the
    52  reasons  for  its  decision  in writing or on the record. Such decision,
    53  whether in writing or on the record, may not be waived by  either  party
    54  or counsel.
    55    e.  (1)  The  court shall order the post-divorce maintenance guideline
    56  obligation up to the income cap in accordance with paragraph c  of  this

        A. 7645                            12
 
     1  subdivision,  unless  the  court finds that the post-divorce maintenance
     2  guideline obligation is unjust or inappropriate, which finding shall  be
     3  based  upon  consideration  of any one or more of the following factors,
     4  and adjusts the post-divorce maintenance guideline obligation according-
     5  ly based upon such consideration:
     6    (a) the age and health of the parties;
     7    (b) the present or future earning capacity of the parties, including a
     8  history of limited participation in the workforce;
     9    (c) the need of one party to incur education or training expenses;
    10    (d) the termination of a child support award before the termination of
    11  the maintenance award when the calculation of maintenance was based upon
    12  child  support being awarded which resulted in a maintenance award lower
    13  than it would have been had child support not been awarded;
    14    (e) the wasteful dissipation of marital property, including  transfers
    15  or  encumbrances  made  in contemplation of a matrimonial action without
    16  fair consideration;
    17    (f) the existence and duration of a pre-marital joint household  or  a
    18  pre-divorce separate household;
    19    (g)  acts by one party against another that have inhibited or continue
    20  to inhibit a party's earning capacity or ability  to  obtain  meaningful
    21  employment.  Such  acts  include but are not limited to acts of domestic
    22  violence as provided in section four hundred fifty-nine-a of the  social
    23  services law;
    24    (h) the availability and cost of medical insurance for the parties;
    25    (i)  the  care of children or stepchildren, disabled adult children or
    26  stepchildren, elderly parents or in-laws provided  during  the  marriage
    27  that inhibits a party's earning capacity;
    28    (j) the tax consequences to each party;
    29    (k)  the  standard  of  living  of  the parties established during the
    30  marriage;
    31    (l) the reduced or lost earning capacity of the payee as a  result  of
    32  having  forgone  or  delayed  education,  training, employment or career
    33  opportunities during the marriage;
    34    (m) the equitable distribution of marital property and the  income  or
    35  imputed income on the assets so distributed;
    36    (n)  the  contributions and services of the payee as a spouse, parent,
    37  wage earner and homemaker and to the career or career potential  of  the
    38  other party; and
    39    (o)  any  other factor which the court shall expressly find to be just
    40  and proper.
    41    (2) Where the court finds that the post-divorce maintenance  guideline
    42  obligation is unjust or inappropriate and the court adjusts the post-di-
    43  vorce  maintenance  guideline obligation pursuant to this paragraph, the
    44  court shall set forth, in a written decision or on the record, the unad-
    45  justed post-divorce maintenance guideline  obligation,  the  factors  it
    46  considered,  and  the  reasons  that the court adjusted the post-divorce
    47  maintenance obligation. Such decision shall  not  be  waived  by  either
    48  party or counsel.
    49    f.  The  duration  of  post-divorce  maintenance  may be determined as
    50  follows:
    51    (1) The court may determine the duration of  post-divorce  maintenance
    52  in accordance with the following advisory schedule:
    53  Length of the marriage             Percent of the length of the
    54                                     marriage for which
    55                                     maintenance will be payable
    56  0 up to and including 15 years     15% - 30%

        A. 7645                            13
 
     1  More than 15 up to and including   30% - 40%
     2  20 years
     3  More than 20 years                 35% - 50%
     4    (2)  In  determining the duration of post-divorce maintenance, whether
     5  or not the court utilizes the advisory schedule, it shall  consider  the
     6  factors  listed  in  subparagraph one of paragraph e of this subdivision
     7  and shall set forth, in a written decision or on the record, the factors
     8  it considered. Such decision shall not be  waived  by  either  party  or
     9  counsel.  Nothing herein shall prevent the court from awarding non-dura-
    10  tional maintenance in an appropriate case.
    11    (3) Notwithstanding the provisions of subparagraph one of  this  para-
    12  graph, post-divorce maintenance shall terminate upon the death of either
    13  party  or  upon the payee's valid or invalid marriage, or upon modifica-
    14  tion pursuant to paragraph b of subdivision nine of this part or section
    15  two hundred forty-eight of this article.
    16    (4) Notwithstanding the provisions of subparagraph one of  this  para-
    17  graph,  when determining duration of post-divorce maintenance, the court
    18  shall take into consideration anticipated retirement  assets,  benefits,
    19  and  retirement  eligibility age of both parties if ascertainable at the
    20  time of decision. If not ascertainable at  the  time  of  decision,  the
    21  actual  full or partial retirement of the payor with substantial diminu-
    22  tion of income shall be a basis for a modification of the award.
    23    g. Where either or both parties are unrepresented, the court shall not
    24  enter a maintenance order or  judgment  unless  the  court  informs  the
    25  unrepresented party or parties of the post-divorce maintenance guideline
    26  obligation.
    27    h.  Nothing  contained in this subdivision shall be construed to alter
    28  the rights of the parties to voluntarily  enter  into  validly  executed
    29  agreements  or  stipulations which deviate from the post-divorce mainte-
    30  nance guideline obligation.
    31    i. When a payor has defaulted and/or the court makes a finding at  the
    32  time of trial that it was presented with insufficient evidence to deter-
    33  mine  income,  the  court shall order the post-divorce maintenance based
    34  upon the needs of the payee or the standard of  living  of  the  parties
    35  prior to commencement of the divorce action, whichever is greater.  Such
    36  order  may  be retroactively modified upward without a showing of change
    37  in  circumstances  upon  a  showing  of  substantial  newly   discovered
    38  evidence.
    39    j. Post-divorce maintenance may be modified pursuant to paragraph b of
    40  subdivision nine of this part.
    41    k. In any action or proceeding for modification of an order of mainte-
    42  nance  or alimony existing prior to the effective date of the chapter of
    43  the laws of two thousand fifteen which amended this subdivision, brought
    44  pursuant to this article, the guidelines  for  post-divorce  maintenance
    45  set  forth  in this subdivision shall not constitute a change of circum-
    46  stances warranting modification of such support order.
    47    l. In any action or proceeding for modification where the parties have
    48  entered into an agreement providing for maintenance pursuant to subdivi-
    49  sion three of this part entered into prior to the effective date of  the
    50  chapter  of the laws of two thousand fifteen which amended this subdivi-
    51  sion, brought pursuant to this article, the guidelines for  post-divorce
    52  maintenance  set forth in this subdivision shall not constitute a change
    53  of circumstances warranting modification of such agreement.
    54    m. In any action or proceeding for modification of an order of mainte-
    55  nance or alimony existing prior to the effective date of the chapter  of
    56  the laws of two thousand fifteen which amended this subdivision, brought

        A. 7645                            14
 
     1  pursuant  to  this  article, the guidelines for post-divorce maintenance
     2  set forth in paragraphs c, d and e of this subdivision shall not apply.
     3    n. In any action or proceeding for modification where the parties have
     4  entered into an agreement providing for maintenance pursuant to subdivi-
     5  sion  three of this part entered into prior to the effective date of the
     6  chapter of the laws of two thousand fifteen which amended this  subdivi-
     7  sion,  brought pursuant to this article, the guidelines for post-divorce
     8  maintenance set forth in paragraphs c, d and e of this subdivision shall
     9  not apply.
    10    o. In any decision made pursuant to this subdivision the court  shall,
    11  where  appropriate,  consider  the effect of a barrier to remarriage, as
    12  defined in subdivision six of section two hundred  fifty-three  of  this
    13  article, on the factors enumerated in paragraph e of this subdivision.
    14    §  5.  Subparagraph  1  of  paragraph  b of subdivision 9 of part B of
    15  section 236 of the domestic relations law, as amended by chapter 182  of
    16  the laws of 2010, is amended to read as follows:
    17    (1)  Upon  application  by either party, the court may annul or modify
    18  any prior order or judgment made after trial as to maintenance,  upon  a
    19  showing  of the [recipient's] payee's inability to be self-supporting or
    20  upon a showing of a substantial change in circumstance  [or  termination
    21  of  child  support awarded pursuant to section two hundred forty of this
    22  article], including financial hardship or upon actual  full  or  partial
    23  retirement  of  the  payor  if  the  retirement results in a substantial
    24  change in financial circumstances. Where, after the  effective  date  of
    25  this part, [a separation] an agreement remains in force, no modification
    26  of [a prior] an order or judgment incorporating the terms of said agree-
    27  ment  shall be made as to maintenance without a showing of extreme hard-
    28  ship on either party, in which event the judgment or order  as  modified
    29  shall  supersede  the terms of the prior agreement and judgment for such
    30  period of time and under such circumstances as the court determines. The
    31  court shall not reduce or annul any arrears of  maintenance  which  have
    32  been  reduced  to  final judgment pursuant to section two hundred forty-
    33  four of this article. No other arrears of maintenance which have accrued
    34  prior to the making of such application shall be subject to modification
    35  or annulment unless the defaulting party shows good cause for failure to
    36  make application for relief from the judgment or  order  directing  such
    37  payment  prior  to the accrual of such arrears and the facts and circum-
    38  stances constituting good cause are set forth in a written memorandum of
    39  decision. Such modification may increase maintenance nunc pro tunc as of
    40  the date of application based on newly discovered evidence. Any retroac-
    41  tive amount of maintenance due shall, except as provided for herein,  be
    42  paid  in  one  sum  or  periodic sums, as the court directs, taking into
    43  account any temporary or partial payments  which  have  been  made.  The
    44  provisions of this subdivision shall not apply to a separation agreement
    45  made prior to the effective date of this part.
    46    §  6. Section 248 of the domestic relations law, as amended by chapter
    47  604 of the laws of 1975, is amended to read as follows:
    48    § 248. Modification of judgment or order  in  action  for  divorce  or
    49  annulment.  Where an action for divorce or for annulment or for a decla-
    50  ration of the nullity of a void marriage is brought  by  a  [husband  or
    51  wife]  spouse,  and  a  final  judgment  of  divorce or a final judgment
    52  annulling the marriage or declaring its nullity has been  rendered,  the
    53  court,  by  order upon the application of the [husband] payor on notice,
    54  and on proof of the marriage of the [wife] payee after such final  judg-
    55  ment,  must  modify such final judgment and any orders made with respect
    56  thereto by annulling the provisions of such final judgment or orders, or

        A. 7645                            15
 
     1  of both, directing payments of money  for  the  support  of  the  [wife]
     2  payee.    The  court in its discretion upon application of the [husband]
     3  payor on notice, upon proof that the [wife] payee is  habitually  living
     4  with  another  [man]  person  and holding himself or herself out as [his
     5  wife] the spouse of such other person,  although  not  married  to  such
     6  [man]  other  person, may modify such final judgment and any orders made
     7  with respect thereto by annulling the provisions of such final  judgment
     8  or orders or of both, directing payment of money for the support of such
     9  [wife] payee.
    10    § 7. Section 412 of the family court act, as amended by chapter 281 of
    11  the laws of 1980, is amended to read as follows:
    12    § 412. Married person's duty to support spouse. 1. A married person is
    13  chargeable  with  the support of his or her spouse and, [if possessed of
    14  sufficient means or able to earn such means, may be required to pay  for
    15  his  or  her  support  a  fair  and reasonable sum, as] except where the
    16  parties have entered into an agreement pursuant to section four  hundred
    17  twenty-five of this article providing for support, the court [may deter-
    18  mine, having due regard to the circumstances of the respective parties],
    19  upon  application  by  a party, shall make its award for spousal support
    20  pursuant to the provisions of this part.
    21    2. For purposes of this section, the following  definitions  shall  be
    22  used:
    23    (a) "payor" shall mean the spouse with the higher income.
    24    (b) "payee" shall mean the spouse with the lower income.
    25    (c)  "income" shall mean income as defined in the child support stand-
    26  ards act and codified in section  two  hundred  forty  of  the  domestic
    27  relations  law and section four hundred thirteen of this article without
    28  subtracting spousal support actually paid or to be paid to a spouse that
    29  is a party to the instant action pursuant to  subclause  (C)  of  clause
    30  (vii)  of  subparagraph  five  of  paragraph (b) of subdivision one-b of
    31  section two hundred forty of the domestic relations  law  and  subclause
    32  (C) of clause (vii) of subparagraph five of paragraph (b) of subdivision
    33  one of section four hundred thirteen of this article.
    34    (d)  "income  cap" shall mean up to and including one hundred seventy-
    35  five thousand dollars of the payor's annual income;  provided,  however,
    36  beginning January thirty-first, two thousand sixteen and every two years
    37  thereafter, the income cap amount shall increase by the sum of the aver-
    38  age  annual percentage changes in the consumer price index for all urban
    39  consumers (CPI-U) as published by the United States department of  labor
    40  bureau  of  labor  statistics  for the prior two years multiplied by the
    41  then income cap and then rounded to the nearest  one  thousand  dollars.
    42  The  office  of  court  administration  shall  determine and publish the
    43  income cap.
    44    (e) "guideline amount of spousal support" shall mean the  sum  derived
    45  by the application of subdivision three or four of this section.
    46    (f)  "self-support  reserve"  shall  mean  the self-support reserve as
    47  defined in the child support standards act and codified in  section  two
    48  hundred  forty  of  the  domestic relations law and section four hundred
    49  thirteen of this article.
    50    (g) "agreement" shall have the same meaning as provided in subdivision
    51  three of part B of  section  two  hundred  thirty-six  of  the  domestic
    52  relations law.
    53    3.  Where the payor's income is lower than or equal to the income cap,
    54  the court shall determine the guideline amount  of  spousal  support  as
    55  follows:

        A. 7645                            16
 
     1    (a)  Where child support will be paid for children of the marriage and
     2  where the payor as defined in this section  is  also  the  non-custodial
     3  parent pursuant to the child support standards act:
     4    (1) the court shall subtract twenty-five percent of the payee's income
     5  from twenty percent of the payor's income.
     6    (2)  the  court  shall then multiply the sum of the payor's income and
     7  the payee's income by forty percent.
     8    (3) the court shall  subtract  the  payee's  income  from  the  amount
     9  derived from subparagraph two of this paragraph.
    10    (4)  the court shall determine the lower of the two amounts derived by
    11  subparagraphs one and three of this paragraph.
    12    (5) the guideline amount of spousal support shall be the amount deter-
    13  mined by subparagraph four of this paragraph except that, if the  amount
    14  determined  by subparagraph four of this paragraph is less than or equal
    15  to zero, the guideline amount of spousal support shall be zero dollars.
    16    (6) spousal support shall be calculated prior to child support because
    17  the amount of spousal support  shall  be  subtracted  from  the  payor's
    18  income and added to the payee's income as part of the calculation of the
    19  child support obligation.
    20    (b) Where child support will not be paid for children of the marriage,
    21  or where child support will be paid for children of the marriage but the
    22  payor as defined in this section is the custodial parent pursuant to the
    23  child support standards act:
    24    (1) the court shall subtract twenty percent of the payee's income from
    25  thirty percent of the payor's income.
    26    (2)  the  court  shall then multiply the sum of the payor's income and
    27  the payee's income by forty percent.
    28    (3) the court shall  subtract  the  payee's  income  from  the  amount
    29  derived from subparagraph two of this paragraph.
    30    (4) the court shall determine the lower of amounts derived by subpara-
    31  graphs one and three of this paragraph.
    32    (5) the guideline amount of spousal support shall be the amount deter-
    33  mined  by subparagraph four of this paragraph except that, if the amount
    34  determined by subparagraph four of this paragraph is less than or  equal
    35  to zero, the guideline amount of spousal support shall be zero dollars.
    36    (6) if child support will be paid for children of the marriage but the
    37  payor as defined in this section is the custodial parent pursuant to the
    38  child  support  standards act, spousal support shall be calculated prior
    39  to child  support  because  the  amount  of  spousal  support  shall  be
    40  subtracted  from  the  payor's income and added to the payee's income as
    41  part of the calculation of the child support obligation.
    42    4. Where the payor's income exceeds the income cap,  the  court  shall
    43  determine the guideline amount of spousal support as follows:
    44    (a)  the court shall perform the calculations set forth in subdivision
    45  three of this section for the income of the payor up  to  and  including
    46  the income cap; and
    47    (b)  for  income  exceeding  the cap, the amount of additional spousal
    48  support awarded, if any, shall be within the  discretion  of  the  court
    49  which  shall  take into consideration any one or more of the factors set
    50  forth in paragraph (a) of subdivision six of this section; and
    51    (c) the court shall set  forth  the  factors  it  considered  and  the
    52  reasons  for  its  decision  in writing or on the record. Such decision,
    53  whether in writing or on the record, may not be waived by  either  party
    54  or counsel.
    55    5. Notwithstanding the provisions of this section, where the guideline
    56  amount  of  spousal  support  would  reduce the payor's income below the

        A. 7645                            17
 
     1  self-support reserve for a single person, the guideline amount of spous-
     2  al support shall be the difference between the payor's  income  and  the
     3  self-support  reserve.  If  the payor's income is below the self-support
     4  reserve, there shall be a rebuttable presumption that no spousal support
     5  is awarded.
     6    6.  (a)  The court shall order the guideline amount of spousal support
     7  up to the cap in accordance with  subdivision  three  of  this  section,
     8  unless  the  court finds that the guideline amount of spousal support is
     9  unjust or inappropriate, which finding shall be based upon consideration
    10  of any one or more of the following factors, and adjusts  the  guideline
    11  amount  of  spousal  support accordingly based upon consideration of the
    12  following factors:
    13    (1) the age and health of the parties;
    14    (2) the present or future earning capacity of the parties, including a
    15  history of limited participation in the workforce;
    16    (3) the need of one party to incur education or training expenses;
    17    (4) the termination of a child support award during  the  pendency  of
    18  the  spousal  support  award when the calculation of spousal support was
    19  based upon child support being  awarded  which  resulted  in  a  spousal
    20  support  award  lower than it would have been had child support not been
    21  awarded;
    22    (5) the wasteful dissipation of marital property, including  transfers
    23  or  encumbrances  made  in contemplation of a support proceeding without
    24  fair consideration;
    25    (6) the existence and duration of a pre-marital joint household  or  a
    26  pre-support proceedings separate household;
    27    (7)  acts by one party against another that have inhibited or continue
    28  to inhibit a party's earning capacity or ability  to  obtain  meaningful
    29  employment.  Such  acts  include but are not limited to acts of domestic
    30  violence as provided in section four hundred fifty-nine-a of the  social
    31  services law;
    32    (8) the availability and cost of medical insurance for the parties;
    33    (9)  the  care of children or stepchildren, disabled adult children or
    34  stepchildren, elderly parents or in-laws provided  during  the  marriage
    35  that inhibits a party's earning capacity;
    36    (10) the tax consequences to each party;
    37    (11)  the  standard  of  living  of the parties established during the
    38  marriage;
    39    (12) the reduced or lost earning capacity of the payee as a result  of
    40  having  forgone  or  delayed  education,  training, employment or career
    41  opportunities during the marriage;
    42    (13) the contributions and services of the payee as a spouse,  parent,
    43  wage  earner  and homemaker and to the career or career potential of the
    44  other party;
    45    (14) any other factor which the court shall expressly find to be  just
    46  and proper.
    47    (b) Where the court finds that the guideline amount of spousal support
    48  is unjust or inappropriate and the court adjusts the guideline amount of
    49  spousal support pursuant to this subdivision, the court shall set forth,
    50  in  a written decision or on the record, the guideline amount of spousal
    51  support, the factors it considered,  and  the  reasons  that  the  court
    52  adjusted the guideline amount of spousal support. Such decision, whether
    53  in  writing  or  on  the  record, shall not be waived by either party or
    54  counsel.

        A. 7645                            18
 
     1    (c) Where either or both parties are unrepresented,  the  court  shall
     2  not  enter a spousal support order unless the court informs the unrepre-
     3  sented party or parties of the guideline amount of spousal support.
     4    7.  When a party has defaulted and/or the court makes a finding at the
     5  time of trial that it was presented with insufficient evidence to deter-
     6  mine income, the court shall order the spousal support award based  upon
     7  the needs of the payee or the standard of living of the parties prior to
     8  commencement  of  the  spousal support proceeding, whichever is greater.
     9  Such order may be retroactively modified upward  without  a  showing  of
    10  change  in  circumstances upon a showing of substantial newly discovered
    11  evidence.
    12    8. In any action or proceeding for modification of an order of spousal
    13  support existing prior to the effective date of the chapter of the  laws
    14  of  two thousand fifteen which amended this section, brought pursuant to
    15  this article, the spousal support guidelines set forth in  this  section
    16  shall  not  constitute a change of circumstances warranting modification
    17  of such spousal support order.
    18    9. In any action or proceeding for modification where spousal  support
    19  or  maintenance  was  established  in  a written agreement providing for
    20  spousal support made pursuant to section  four  hundred  twenty-five  of
    21  this  article or made pursuant to subdivision three of part B of section
    22  two hundred thirty-six of the domestic relations law entered into  prior
    23  to the effective date of the chapter of the laws of two thousand fifteen
    24  which amended this section, brought pursuant to this article, the spous-
    25  al  support  guidelines set forth in this section shall not constitute a
    26  change of circumstances warranting modification of such spousal  support
    27  order.
    28    10. The court may modify an order of spousal support upon a showing of
    29  a substantial change in circumstances. Unless so modified, any order for
    30  spousal support issued pursuant to this section shall continue until the
    31  earliest to occur of the following:
    32    (a) a written stipulation or agreement between the parties;
    33    (b)  an oral stipulation or agreement between the parties entered into
    34  on the record in open court;
    35    (c) issuance of a judgment of divorce or other order in a  matrimonial
    36  proceeding;
    37    (d) the death of either party.
    38    § 8. This act shall take effect on the one hundred twentieth day after
    39  it  shall  have  become a law and shall apply to matrimonial actions and
    40  family court actions for spousal support  commenced  on  or  after  such
    41  effective  date;  provided  however that section three of this act shall
    42  take effect on the thirtieth day after it shall have become  a  law  and
    43  shall  apply to matrimonial actions commenced on or after such effective
    44  date.  Nothing in this act shall be deemed to affect the validity of any
    45  agreement made pursuant to subdivision 3 of part B of section 236 of the
    46  domestic relations law or section 425 of the family court act  prior  to
    47  the effective date of this act.
Go to top