Another Update On No-Fault Divorce In New York

I have previously written about the slow progress of no-fault divorce legislation though New York’s Senate and Assembly here and here. Finally, it appears that New York is on the cusp of passing no-fault divorce law and joining the rest of the country.

On July 1, 2010, the Assembly passed no-fault divorce bill, which previously was approved in the Senate. If signed by Gov. David Paterson, New York would no longer be the only state that doesn’t allow no-fault divorce.

Under no-fault divorce, couples would be allowed to divorce after six months and the resolution of all financial issues. They would not have to prove fault, such as abandonment or adultery, or develop a separation agreement and live apart for at least a year in order to get divorced. Proponents said the changes would save time and money and court resources.

The Assembly and Senate previously approved two other bills related to no-fault divorce. One would require counsel fees to be awarded at the beginning of a divorce process and the other would address issues related to spousal support. The measure dealing with spousal support would establish temporary spousal maintenance while the divorce proceeding is pending, revise factors for final maintenance awards and require the Law Revision Commission to study the economic consequences of divorce and maintenance actions.

While the elimination of marital fault is extremely important and would greatly benefit people seeking divorce here in Rochester and elsewhere in New York State, it is the bill dealing with temporary spousal support that is likely to present some significant legal issues if it becomes law.

The bill is interesting since unlike the existing law regarding temporary spousal support, it utilizes a formula to calculate a temporary spousal support award. The amount of spousal support and its duration are calculated on the basis of a formula as follows:

3 5-A. TEMPORARY MAINTENANCE AWARDS. A. EXCEPT WHERE THE PARTIES HAVE
4 ENTERED INTO AN AGREEMENT PURSUANT TO SUBDIVISION THREE OF THIS PART
5 PROVIDING FOR MAINTENANCE, IN ANY MATRIMONIAL ACTION THE COURT SHALL
6 MAKE ITS AWARD FOR TEMPORARY MAINTENANCE PURSUANT TO THE PROVISIONS OF
7 THIS SUBDIVISION.
8 B. FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL
9 BE USED:
10 (1) “PAYOR” SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
11 (2) “PAYEE” SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
12 (3) “LENGTH OF MARRIAGE” SHALL MEAN THE PERIOD FROM THE DATE OF
13 MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
14 (4) “INCOME” SHALL MEAN:
15 (A) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
16 IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
17 THIRTEEN OF THE FAMILY COURT ACT; AND
18 (B) INCOME FROM INCOME PRODUCING PROPERTY TO BE DISTRIBUTED PURSUANT
19 TO SUBDIVISION FIVE OF THIS PART.
20 (5) “INCOME CAP” SHALL MEAN UP TO AND INCLUDING FIVE HUNDRED THOUSAND
21 DOLLARS OF THE PAYOR’S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
22 ARY THIRTY-FIRST, TWO THOUSAND TWELVE AND EVERY TWO YEARS THEREAFTER,
23 THE PAYOR’S ANNUAL INCOME AMOUNT SHALL INCREASE BY THE PRODUCT OF THE

EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17166-10-0
A. 10984–B 2

1 AVERAGE ANNUAL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL
2 URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF
3 LABOR BUREAU OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE
4 NEAREST ONE THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL
5 DETERMINE AND PUBLISH THE INCOME CAP.
6 (6) “GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE” SHALL MEAN THE SUM
7 DERIVED BY THE APPLICATION OF PARAGRAPH C OF THIS SUBDIVISION.
8 (7) “GUIDELINE DURATION” SHALL MEAN THE DURATIONAL PERIOD DETERMINED
9 BY THE APPLICATION OF PARAGRAPH D OF THIS SUBDIVISION.
10 (8) “PRESUMPTIVE AWARD” SHALL MEAN THE GUIDELINE AMOUNT OF THE TEMPO-
11 RARY MAINTENANCE AWARD FOR THE GUIDELINE DURATION PRIOR TO THE COURT’S
12 APPLICATION OF ANY ADJUSTMENT FACTORS AS PROVIDED IN SUBPARAGRAPH ONE OF
13 PARAGRAPH E OF THIS SUBDIVISION.
14 (9) “SELF-SUPPORT RESERVE” SHALL MEAN THE SELF-SUPPORT RESERVE AS
15 DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
16 HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
17 FAMILY COURT ACT.
C. THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
19 NANCE IN ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH AFTER DETER-
20 MINING THE INCOME OF THE PARTIES:
21 (1) WHERE THE PAYOR’S INCOME IS UP TO AND INCLUDING THE INCOME CAP:
22 (A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE INCOME OF THE PAYEE
23 FROM THIRTY PERCENT OF THE INCOME UP TO THE INCOME CAP OF THE PAYOR.
24 (B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR’S INCOME UP TO
25 AND INCLUDING THE INCOME CAP AND ALL OF THE PAYEE’S INCOME BY FORTY
26 PERCENT.
27 (C) THE COURT SHALL SUBTRACT THE INCOME OF THE PAYEE FROM THE AMOUNT
28 DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
29 (D) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE LOWER
30 OF THE AMOUNTS DETERMINED BY CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH;
31 IF THE AMOUNT DETERMINED BY CLAUSE (C) OF THIS SUBPARAGRAPH IS LESS THAN
32 OR EQUAL TO ZERO, THE GUIDELINE AMOUNT SHALL BE ZERO DOLLARS.
33 (2) WHERE THE INCOME OF THE PAYOR EXCEEDS THE INCOME CAP:
34 (A) THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAIN-
35 TENANCE FOR THAT PORTION OF THE PAYOR’S INCOME THAT IS UP TO AND INCLUD-
36 ING THE INCOME CAP ACCORDING TO SUBPARAGRAPH ONE OF THIS PARAGRAPH, AND,
37 FOR THE PAYOR’S INCOME IN EXCESS OF THE INCOME CAP, THE COURT SHALL
38 DETERMINE ANY ADDITIONAL GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE
39 THROUGH CONSIDERATION OF THE FOLLOWING FACTORS:
40 (I) THE LENGTH OF THE MARRIAGE;
41 (II) THE SUBSTANTIAL DIFFERENCES IN THE INCOMES OF THE PARTIES;
42 (III) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
43 MARRIAGE;
44 (IV) THE AGE AND HEALTH OF THE PARTIES;
45 (V) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES;
46 (VI) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
47 (VII) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
48 (VIII) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMO-
49 NIAL ACTION WITHOUT FAIR CONSIDERATION;
50 (IX) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
51 PRE-DIVORCE SEPARATE HOUSEHOLD;
52 (X) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
53 TO INHIBIT A PARTY’S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
54 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
55 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
56 SERVICES LAW;

In some respects, having a formula creates some predictability with respect to temporary spousal support awards that has been missing in the present law. At the same time, the blind application of the formula is likely to cause a different set of problems. If the bill passes, how these provisions are going to be interpreted by the courts is somewhat uncertain. As far as the divorce lawyers are concerned, this is likely to force divorce lawyers to spend even more time counseling clients with respect to temporary spousal support and post-divorce spousal support issues.

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