Bill Text: NY A07645 | 2015-2016 | General Assembly | Introduced


Bill Title: 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.

Spectrum: Partisan Bill (Democrat 10-0)

Status: (Passed) 2015-09-25 - signed chap.269 [A07645 Detail]

Download: New_York-2015-A07645-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7645
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                     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    S 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    S 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    S 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
    2  SEVENTY-FIVE  THOUSAND  DOLLARS  OF THE PAYOR'S ANNUAL INCOME; PROVIDED,
    3  HOWEVER, BEGINNING JANUARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND  EVERY
    4  TWO YEARS THEREAFTER, THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF
    5  THE  AVERAGE  ANNUAL  PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR
    6  ALL URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT
    7  OF LABOR BUREAU OF LABOR STATISTICS FOR THE PRIOR TWO  YEARS  MULTIPLIED
    8  BY  THE  THEN  INCOME  CAP  AND THEN ROUNDED TO THE NEAREST ONE THOUSAND
    9  DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND  PUBLISH
   10  THE 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    S  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    S  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    S 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    S 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    S 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
   35  SEVENTY-FIVE THOUSAND DOLLARS OF THE PAYOR'S  ANNUAL  INCOME;  PROVIDED,
   36  HOWEVER,  BEGINNING JANUARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY
   37  TWO YEARS THEREAFTER, THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF
   38  THE AVERAGE ANNUAL PERCENTAGE CHANGES IN THE CONSUMER  PRICE  INDEX  FOR
   39  ALL URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT
   40  OF  LABOR  BUREAU OF LABOR STATISTICS FOR THE PRIOR TWO YEARS MULTIPLIED
   41  BY THE THEN INCOME CAP AND THEN ROUNDED  TO  THE  NEAREST  ONE  THOUSAND
   42  DOLLARS.  THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND PUBLISH
   43  THE 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    S 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.
feedback