What Happens to My Court Case During the Coronavirus Pandemic?

Over the course of the last few weeks, it has become clear that the consequences of the COVID-19 (“Coronavirus”) pandemic are far reaching. In order to protect the health and safety of individuals, certain precautionary measures have been implemented.

On March 15, 2020, Chief Administrative Judge Lawrence K. Marks issued a Memorandum outlining updated operational protocols for the trial courts of the New York State Unified Court System. The Memorandum provides that, effective 5:00 p.m. on March 16, 2020, all non-essential functions of the trial courts are postponed until further notice. The Memorandum, in its entirety, can be found at http://nycourts.gov/whatsnew/pdf/Updated-Protocol-AttachmentA3.pdf.

But what does this mean for your civil court case? The answer to this question depends on the particular stage of litigation that your case is in.

For those courts that permit electronic filing, lawsuits may still be commenced by such electronic filing. However, you should discuss with your attorney whether filing a complaint at this time is prudent. For instance, a complaint must be served on the opposing party within 120 days of filing the complaint. Due to the implementation of such precautionary measures as social distancing, serving such pleadings may be difficult or dangerous.

If your case is in the discovery stage, document production and responding to demands can continue. However, delays should be expected as many attorneys have been forced to work remotely without the assistance of a fully staffed law firm. Depositions may also take place, but social distancing protocol should be observed.

Any motions, court conferences, and mediations will be postponed until at least May 2020. All civil trials (not commenced before March 13, 2020) have also been stayed indefinitely.

If your case has been appealed to the Appellate Division of the Supreme Court Fourth Judicial Department, all matters calendared for the March/April 2020 term will be considered on submission only, without oral argument. All matters currently scheduled for the May 2020 term are adjourned and will be re-calendared for a later term. The Court will, however, entertain emergency matters.

An unintended consequence of the foregoing changes will be the creation of an overwhelming backlog of cases for the Courts to deal with. It appears that litigants and the Courts will continue to feel the effects of this pandemic long after the crisis has passed.

Certain types of cases are exempted from the updated protocol, including, but not limited to, mental hygiene, guardianship, and civil commitment matters. In addition, certain specific types of matters are subject to a separate set of updated protocols, including, but not limited, evictions and foreclosures. For more information about these exemptions/exceptions, please consult our Litigation Department or your legal counsel.

If you have a case in the United States District Court of New York or Bankruptcy Court, operational protocols have also been updated. Such Orders can be found on each District’s website.

Obtaining Original (Pre-Adoption) Birth Certificate for Adoptees

On January 15, 2020, New York’s law, allowing adoptees to receive a certified copy of their original, or pre-adoption, birth certificate when they turn 18-years-old, went into effect. The new law gives the right to all adult New York adoptees to obtain information about their birth and biological parents. Thus, adult adoptees are able to obtain information about their origins, family histories and medical backgrounds .

Starting on January 15, 2020, the New York State Department of Health began accepting requests from adoptees 18-years-old and older born in New York State, outside of New York City, who want to receive their original birth certificate. If the adoptee is deceased, direct line descendants, such as a child, grandchild or great-grandchild of the adoptee, may request a copy of the adoptee’s birth certificate. Also, a lawful representative of an adoptee or a lawful representative of a deceased adopted person’s direct line descendant may also apply for an original birth certificate.

The Department of Health has birth records for all of New York State except New York City. Adoptees born in New York City must apply through the New York City Department of Health and Mental Hygiene. Applications for the birth certificate can be made online and are likely to result in faster issuance of the birth certificate. Paper applications will also be accepted by mail and in person. All certificates will be issued via regular mail; no certificates will be issued in person or via email.

Previously, the original birth certificates were sealed pursuant to the provisions of the Public Health Law and Domestic Relations Law. They could not be released except by the order of the court without meeting a high level of proof.

Collection of Child Support Arrears

One issue that often comes up when someone owes child support or spousal support arrears is how those arrears are to be collected. One of the more common methods is through the use of income execution for support enforcement under CPLR §5241.

CPLR §5241 allows the attorney for the party to whom to child support or spousal support are owed to obtain up to 65 percent of the debtor’s disposable earnings to pay both past due and current amounts of child support, alimony or maintenance, plus provision of health insurance for dependents. CPLR §5241(h) notes that a levy on this type of execution has priority “over any other assignment, levy or process.”

Similar to the income execution for support enforcement is the income deduction order for support enforcement authorized by CPLR §5242. Such an order is issued by the court at the same time it issues an order of support. It allows deduction of the same percentages from debtor’s income payable to the creditor and the same number-one priority over all other assignments, levies or process against the income of the debtor.

If you are a debtor, a deduction of 65% of disposable earnings is likely to be unmanageable.  So what can be done? The answer is contained in CPLR §5240, which allows the court to modify terms of garnishment.  In Fishler v. Fishler, 154 A.D.3d 917 (2nd Dep’t 2017), the debtor was served with an execution for the maximum percentage permitted, 65% of disposable earnings.  The Appellate Division, having reviewed financial circumstances of the debtor, reduced percentage collected to 40% of disposable wages.  In making its decision, the court was seeking to strike “a fair balance between the needs of a creditor holding a valid money judgment and the needs of a debtor managing competing financial obligations”.

One additional issue is worth mentioning. If child support or spousal support are being collected by New York State Child Support Enforcement Unit, those arrears will be collected by increasing the amount garnished by 50% of the current payment due.  Debtor paying such arrears may apply for a lower payment amount on arrears, the so-called administrative adjustment, but such modification is discretionary with CSEU and requires an application and proof of financial circumstances.

Temporary Spousal Maintenance and Marital Residence Expenses

One issue that keeps coming up repeatedly in appellate decisions is whether  the party paying temporary spousal maintenance, can also be ordered to pay carrying costs of the marital residence.   In Rouis v. Rouis, 156 A.D.3d 1198 (3rd Dept. 2018), the Appellate Division, Third Department, held that the statutory formula used to calculate the presumptive temporary maintenance award was intended to cover all of the nonmonied spouse’s needs and basic living expenses, including the carrying charges on the home and her vehicle expenses.

The parties were married in 1993 and had two children. The wife commenced this action for divorce in 2014, after the husband departed the marital residence. Applying the pre-2015 temporary maintenance formula on the wife’s motion for temporary relief, the trial court granted the wife, among other things, temporary maintenance ($1,958 per month) and child support ($2,720 per month) and required the husband to pay for the carrying costs of the marital home ($4,859 per month), private school for the youngest child ($848 per month), health insurance for the family ($1,921 per month), interim counsel fees ($10,000) and the wife’s vehicle and fuel costs ($644 per month). The husband appealed.

The Appellate Division recognized that the combined monthly awards amounted to an annual award of $155,400, not including an additional $10,000 in interim counsel fees, to be paid from the husband’s annual gross income of $183,300.50 (the wife’s pre-award income was $11,700.00).  It held that the temporary awards were excessive and should be modified.

The Appellate Division noted that the (pre-2015) temporary maintenance formula resulted in a presumptive monthly temporary maintenance amount of $4,387.50. The trial court also granted the wife’s request that the husband also pay the $4,859 in the expenses related to the marital residence, including the mortgage, taxes, utilities, insurance and costs of maintenance. While acknowledging that it would not be equitable to require the husband to pay full maintenance, child support and all carrying costs on the marital home, it gave a reduction to the husband for one half of the carrying costs on the home ($2,429.50 per month) by reducing the presumptive maintenance award by that amount, resulting in a temporary maintenance award of $1,958 per month. The Appellate Division noted that when the wife’s vehicle expenses were added ($644 per month), the total combined monthly award was $7,461, plus the children’s tuition ($848 per month) and child support, the net effect of the trial court’s order was that the husband was ordered to pay the full presumptive maintenance award plus one half of the carrying costs on the home and the wife’s vehicle expenses.

The Appellate Division held that the statutory formula used to calculate the presumptive temporary maintenance award was intended to cover all of the nonmonied spouse’s needs and basic living expenses, including the carrying charges on the home and her vehicle expenses. In its holding, the Court cited the First Department’s observation in its 2012 decision in Khaira v. Khaira, 93 A.D.3d 194 (1st Dept. 2012), that “[n]o language in either the new temporary maintenance provision or the [Child Support Standards Act] specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the nonmonied spouse and the children. . . . But, in the absence of a specific reference to the carrying charges for the marital residence, we consider it reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse’s basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses.”

Nonetheless, the Third Department held that while requiring the husband to pay a portion of the housing costs may have been appropriate, the trial court should stated its reasons why the presumptive award of temporary maintenance was “unjust or inappropriate” and the factors it considered.

The Appellate Division found that the combined award for maintenance, carrying costs and the expenses of the wife’s vehicle ($7,461 per month) — which was $3,073.50 per month in excess of the presumptive maintenance award ($4,387.50 per month) (without considering health insurance costs, child support or tuition) — was excessive. Accordingly, the court reduced the husband’s obligation to pay the carrying costs on the marital home by approximately one half of that $3,073.50 excess amount, or $1,540 per month, to $3,319 per month, leaving the $1,958 temporary maintenance award unchanged.

One interesting aspect of the decision was the issue of upkeep on the marital residence. The husband was required by the trial court to pay the monthly excess upkeep amount ($1,168), if any, into a separate account. The Third Department clarified that the upkeep payment was to be a part of the husband’s obligation to pay a total of $3,319 per month in carrying costs on the marital home. The Appellate Division stated in a footnote that wife, “of course,” is to be responsible for paying the remaining carrying costs on the home (other than the specified upkeep costs) from her temporary maintenance award. The parties’ respective pro rata obligations, in the event that the upkeep costs in any month exceed $1,168 and exceed any amount in the excess account, were to be deposited into a separate account pending resolution of equitable distribution issues.  What makes this unusual is the amount of upkeep and the direction that any unspent funds get deposited into a separate account and, if not used for upkeep, any remaining balance “shall be returned to the wife when the house is sold.”  Given that any post-commencement earnings are generally separate property of the party who had earned it, it is unclear what the trial court’s reasoning was with regard to those funds.

The propriety and fairness of awarding the wife the balance of any funds paid by the husband into the upkeep account is a matter to be resolved at trial as part of the overall equitable distribution award and, accordingly, the Third Department did not comment on that issue at this juncture.

The Appellate Division also found that the trial court had miscalculated the child support award and the parties’ pro rata shares of add-on expenses and remitted the case for immediate recalculation of the husband’s temporary child support obligation.

Unfortunately, it is fairly uncommon for the trial courts to make these types of mistakes related to temporary spousal support.  The remedy, in most situations, is the trial.

Exclusive Possession of Marital Residence Revisited

I have previously written about exclusive possession of a marital residence during a pending divorce action.  The applicable standard requires a showing of a marital strife and that the parties were unable to coexist in the same house.  I recently had an opportunity to litigate this issue in a situation where the parties’ conduct has not arisen to the level of marital strife, but the conflict was affecting the parties’ children.  Justice Richard A. Dollinger of the Monroe County Supreme Court reviewed and addressed this issue in L.M.L.v. H.T.N. a/k/a H.T.N., 57 Misc.3d 1207(A) (Sup. Ct. Monroe County 2017).

Having reviewed the history of the marital strife standard, Justice Dollinger wrote that lower courts have generally required more evidence of “strife” than the “petty harassments such as the hostility and contempt admittedly demonstrated herein that are routinely part and parcel of an action for divorce.”  However, he also noted that even minimal levels of domestic discord impact children living in a besieged household.  Given those circumstances, he wrote that:

The harm of a hostile home environment – populated with foul words, disparaging comments, loud demeaning voices, frequent arguments and verbal fights – and the fear for safety of the mother and the children rise, in this court’s view, to the level of domestic violence that [*10]mandates court intervention.Second, this court concedes that simply separating the parents may not end the torrent of verbal abuse directed at the other parent: even in new separate residences, a parent can unleashed verbal abuse and make demeaning comments about the other parent. The children will be exposed to that language, perhaps even harsher than what would be uttered in the company of both parents. But, the children will be spared the retort, the rising voices, the angry face-to-face confrontations that ensue when a parent begins a verbal argument. This difference — between the comments of separated parents living in separate residences and confrontations of parents living in the same residence — may be seem of minor importance to the judiciary, but it would seem to be easily classified as in the “better interests” of the children.

Justice Dollinger summarized the issues before the court as “[t]he mere suggestion that “exclusive use” should hinge, in any fashion, on the “voluntary establishment of an alternative residence” also suggests that preventing domestic violence may depend, in part, on the untenable notion that the convenience of one party’s ability to secure short-term housing away from the home is somehow more important than the emotional security of the children.”  The above holding represents a significant departure from the existing standard.  I agree with the decision and have always thought that the marital strife standard was unduly restrictive.  I will be interested to see if this decision will be followed by other court in pending divorce cases.

 

Expanding Definition of What It Means to Be a Parent

The New York State Court of Appeals ruled last week in Brooke S.B. v Elizabeth A.C.C., 2016 N.Y. Slip. Op. 05903, that a loving caretaker who is not related to, or the adoptive guardian of, a child could still be permitted to ask for custody and visitation rights.

The ruling came from a litigation between a couple, known in family court papers only as Brooke S.B. and Elizabeth A. C.C. In 2008, Elizabeth became pregnant with the couple’s child through artificial insemination. Though Brooke had no legal or biological ties to the child, a boy, she maintained a close relationship with him for years, cutting his umbilical cord at birth, giving him her last name and raising him jointly with Elizabeth. In 2013, after their relationship ended, Elizabeth tried to cut off Brooke’s contact with the boy. Brooke sued for custody and visitation privileges, but was turned down by a lower court, which found that legal precedent pursuant to Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), did not define a non-adoptive, non-biological caretaker as a parent.

In its ruling, the Court of Appeals overturned Alison D., stating that “the definition of ‘parent’ established by this court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships.” It further held that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody.”

While Brooke S.B. seems to be applicable primarily to same sex couples, it is easy to see that the same type of argument may be applicable to heterosexual couples in situations where one partner is artificially inseminated.  The Court of Appeals declined to state what the proper test should be in cases where no preconception agreement can be shown to have existed between nonbiological couple. As far as the proof of the parties’ intent, the courts are likely to look at the parties’ participation such activities as birthing classes, partners’ inclusion on birth notices and other traditional indications of the existence of a pre-conception agreement between a couple.

Final Custody Determination Requires a Plenary Hearing

A mother who lost custody of her children after she broke windows at their father’s house and set fire to his clothes in the driveway should have received an evidentiary hearing, the Court of Appeals has ruled in S.L. v. J.R., 2016 N.Y. Slip. Op. 04442 (2016).  According to the filings, the mother, identified as S.L., and the father, identified as J.R., were married in 1997 and had two kids together.

In September 2012, after 15 years of marriage, S.L. filed for divorce from J.R., and sought full custody of the children. Also that month, she texted J.R.—who had moved out of the family’s house several months prior—that she would burn down the house and set his clothes on fire.

J.R. arrived at the house to find his clothes burnt in the driveway and windows at the house smashed out.  He filed for temporary sole custody of the children, alleging that he feared for their safety because of incidents involving harassment by S.L. and that she also had extramarital affairs and abused alcohol and drugs.

S.L. admitted to setting fire to J.R.’s wardrobe and her involvement in several other incidents, including a past charge of aggravated assault. In October 2012, the trial ruled that there were “enough red flags” to justify granting temporary sole custody of the children to J.R. In April 2013, S.L.’s visitation was suspended after a therapist determined that it would not be in the best interest of the children to allow visitation to continue until she entered anger management therapy.

A few months later, the trial court granted sole custody to J.R. without having a hearing, writing that a hearing was not necessary because the “allegations are not controverted” and that S.L. was being charged in three pending cases in the Integrated Domestic Violence part. In two of the cases, the judge said, S.L. was charged with breaking orders of protection prohibiting her from contacting J.R. or the children.

S.L. appealed trial court’s ruling, but in 2015, the Appellate Division, Second Department affirmed the lower court in S.L. v. J.R., 126 A.D.3d 682 (2nd Dept. 2015), writing that, while custody decisions are generally only made following a comprehensive evidentiary hearing, no hearing is necessary when the court “possesses adequate relevant information to enable it to make an informed and provident decision as to the child’s best interest,” citing its 2004 ruling in Matter of Hom v. Zullo, 6 A.D3.d 536 (2nd Dept. 2004).

But, on June 9, the Court of Appeals unanimously reversed the Second Department’s decision. The Court wrote that while there should be no “one size fits all” rule mandating a hearing in every custody case, custody decisions should generally be made after a full and plenary hearing. In the case of S.L., there were facts relevant to the best interest analysis that were still in dispute, and the trial court appeared to base its decision on hearsay and on the statements of a forensic investigation whose credibility was not questioned by either party.

While the mother was successful in reversing the trial court’s determination, ultimately, I do not believe that it will make a difference when the case is tried. Given the conduct at issue, it is unlikely that the parties will be able to have a joint custodial arrangement.

Parent Who Is Prevented From Seeing Child By Other Spouse Is Not Obligated To Pay Child Support

I have previously written about situations where a child becomes constructively emancipated as a result of the child’s refusal to have contact with the parent.  What happens in situations where a parent is prevented from seeing the child by the other parent? In Coull v. Rottman, 131 A.D.3d 964 (2nd Dept. 2015) the Appellate Division, Second Department suspended father’s obligation to make child support payments.

The father last visited his son in February 2010. For the next several months, he said he would go to the exchange location on visitation days, but often neither the mother nor his son would be there. In one instance, both the mother and the child appeared, but the mother said the boy would not leave the car.

The court also found that the mother assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor.  She further stated many times that she would never allow the father to see his child and would do “whatever it takes” to keep the boy away from him.

Given the circumstances, the court concluded that the father’s obligation to pay child support should be suspended.  While parents have a duty to continually support their children until they are 21 years old, 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.

Further, the relationship between the father and the child had deteriorated and while the boy had participated in therapy for several months to foster a relationship with his father, he remained “vehemently opposed” to any type of visitation with the father.  Since the child was 13 at the time of the hearing, and the judge had placed great weight on the child’s wishes, since he was mature enough to express them.

A similar result was reached by the court in Argueta v. Baker, 2016 N.Y. Slip. Op. 01838, where the Appellate Division held that the father had demonstrated that the mother actively interfered with and deliberately frustrated his visitation with the child by failing to provide him with the child’s Florida address, preventing him from seeing the child when he was in Florida, and failing to notify him when the child was in New York. Therefore, the father was entitled to suspension of his child support obligations.

Both parental alienation and parental interference cases turn on specific proof of the child’s and parents’ actions. They may also require testimony of the child. If the parental relationship with the child is already bad, forcing the child to testify is not likely to improve it.

What Makes a Marriage Valid?

Occasionally, it is not clear whether the parties have a valid marriage which can be critical to such issues such as spousal maintenance and equitable distribution. So what makes a marriage valid?

In a recent decision, a trial court held that a purported marriage between an Orthodox Jewish woman and a man was invalid, even though the parties lived together for ten years after a rabbi performed a marriage ceremony for them without a marriage license. Devorah H. v. Steven S., 2015 N.Y. Slip Op. 25228 (Sup. Ct., N.Y. Co.).

The parties never obtained a marriage license. They were living together with their young children from prior marriages in a small apartment, and sought help from their rabbi in finding more suitable housing when a complaint by the woman’s ex-husband to the Administration for Children’s Services caused alarm. The rabbi found them a larger apartment and suggested they should marry before moving. He then officiated an abbreviated religious marriage ceremony for them on the spot, partially completing a standard form certificate (which he didn’t sign) and urged them to get a marriage license. The parties did not not obtain one, however.

Ten years after the purported marriage ceremony, the woman filed for divorce and the man moved to dismiss, contending they were never validly married. The woman relied on New York Domestic Relations Law Sec. 25, which provides that a “properly solemnized” marriage is valid despite the lack of a marriage license.

After hearing the extensive testimony of the man, the woman, and the rabbi on the issue of whether this marriage was “properly solemnized,” the court concluded that the marriage was invalid, noting particularly the rabbi’s testimony that he had repeatedly urged the parties to “go to City Hall” to get a license, and that they had to know that they would need a new solemnization after a license was issued. The man testified that after they left the rabbi’s office, he had torn up the copy of the certificate that the rabbi gave them.

The trial court relied upon the Supreme Court’s decision in Obergefell v. Hodges (576 U.S. – [2015]):

In the over 100 years since the enactment of DRL Sec. 25, the way citizens marry in New York has changed immeasurably. While at one time the wedding ceremony was the central element of the process, that is no longer the case; church weddings are more and more the exception rather than the rule, and the new wage of marriage ceremonies would be almost unrecognizable to earlier generations.  What is key to the process is the marriage license itself.  This is not only true for New York, but for the entire nation.  After all, when the United States Supreme Court issued its historic decision in Obergefell v. Hodges (576 U.S. – [2015]) making the right to same-sex marriage the law of the land, it did so by decreeing that ‘States are required by the Constitution to issue licenses to same-sex couples’ (emphasis added).

Domestic Relations Law Sec. 25 was also critical to the court’s decision, with the court writing that:

DRL Sec. 25, in its present form, serves no useful function in today’s world. Conceivably, if the statute was amended to allow couples who justifiably believed they were legally married with a valid marriage license to protect the marriage from the claim that the license was improperly executed or otherwise defective, that would certainly serve the public interest. But as it exists now, the statute allows for the wholesale disregard of New York’s licensing requirements – requirements that, as we have seen, play a vital role in insuring that marriages are legally valid. Until DLR Sec. 25 is repealed or reformed, courts will be forced to grapple with situations like this, where the parties fully understood that they did not legally marry but one side seeks to abuse the statute to attain the financial remedies only available to litigants who are married to one another.

The court concluded that “[i]n light of the foregoing, it must be concluded that plaintiff cannot show that she and defendant are married, and therefore has failed to prove an essential element of her prima facie case for divorce.”

The court disregarded the couples’ ten years of cohabitation after the quick marriage ceremony as a basis for finding the woman eligible to seek a formal divorce and disposition equitable distribution of the parties’ assets. The court  concluded that the woman could not under the circumstances claim justifiable reliance on a belief that she was in a valid marriage with the man. The court noted that the man, the woman and the rabbi each provided a different account of what happened, leaving the court to sort out questions of credibility, which were resolved against the woman.

So in order for the marriage to be valid, there has to be a marriage license and that the ceremony be performed. Ultimately, it will be interesting to see if this decision will be upheld on appeal.

New Temporary Spousal Maintenance Provisions are Now In Effect

I have previously written about upcoming changes to New York’s spousal maintenance law. The Governor finally signed the new maintenance law, Ch.269 of the Domestic Relations Law on Friday, September 25th.  The Temporary Maintenance provisions became effective 30 days thereafter, on October 25, 2015, and the balance of the law goes into effect 120 days after signing, on January 23, 2016. The new provisions represent a major change from the prior provisions that have been in effect since 2010.

The most significant of these changes is that formulas will now be used to determine both temporary and post-divorce maintenance. In the past, post-divorce maintenance determinations were largely up to the court’s discretion and were usually based upon applicable prior decisions. The following details how the two new formulas will work:

With child support where the maintenance payor is also the non‐custodial parent for child support purposes: (i) subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
Without child support, or with child support but where the maintenance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.

Additionally, numerous other key changes are included.

A $175,000 income cap will be set on all temporary and post-divorce maintenance calculations. This is a major reduction from the current $543,000 cap. Maintenance calculations will now be made before child support calculations, thus allowing child support decisions to consider burdens from the maintenance determinations.

The duration of post-divorce maintenance will now be decided using a new advisory schedule:

Zero to 15 years of marriage: maintenance should last between 15 and 30 percent of the marriage’s duration.
16 to 20 years of marriage: maintenance should last between 30 and 40 percent of the marriage’s duration.
20 years of marriage or more: maintenance should last between 35 and 40 percent of the marriage’s duration.

Further, considerations of “enhanced earning capacity” will end. Until this statute was passed, attorney usually worked with experts to determine enhanced earning capacity, for example, the lifelong value of a professional degree that was earned over the course of a marriage. These calculations will no longer be used in helping to determine spousal maintenance. However, enhanced earnings may still be considered by the court when distributing other marital assets.

The changes to the Domestic Relations Law will likely result  in greater uniformity of spousal support awards. Further, elimination of enhanced earnings as a distributable asset represent a major change in New York’s law.