Bill Text: NY S07266 | 2013-2014 | General Assembly | Introduced
Bill Title: Provides for the duration and amount payable for temporary and post-divorce maintenance, and spousal support.
Spectrum: Slight Partisan Bill (Democrat 3-1)
Status: (Introduced - Dead) 2014-06-20 - COMMITTED TO RULES [S07266 Detail]
Download: New_York-2013-S07266-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 7266 I N S E N A T E May 8, 2014 ___________ Introduced by Sens. BONACIC, HASSELL-THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Judici- ary AN ACT to amend the domestic relations law, in relation to the duration and amount of maintenance; and to amend the family court act, in relation to spousal support THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivision 5-a of part B of section 236 of the domestic 2 relations law, as added by chapter 371 of the laws of 2010, is amended 3 to read as follows: 4 5-a. Temporary maintenance awards. a. Except where the parties have 5 entered into an agreement pursuant to subdivision three of this part 6 providing for maintenance, in any matrimonial action the court shall 7 make its award for temporary maintenance pursuant to the provisions of 8 this subdivision. 9 b. For purposes of this subdivision, the following definitions shall 10 be used: 11 (1) "Payor" shall mean the spouse with the higher income. 12 (2) "Payee" shall mean the spouse with the lower income. 13 (3) "Length of marriage" shall mean the period from the date of 14 marriage until the date of commencement of action. 15 (4) "Income" shall mean[: 16 (a)] income as defined in the child support standards act and codified 17 in section two hundred forty of this article and section four hundred 18 thirteen of the family court act[; and 19 (b) income from income producing property to be distributed pursuant 20 to subdivision five of this part]. 21 (5) "Income cap" shall mean up to and including [five] THREE hundred 22 thousand dollars of the payor's annual income; provided, however, begin- 23 ning January thirty-first, two thousand [twelve] SIXTEEN and every two 24 years thereafter, the [payor's annual] income CAP amount shall increase 25 by the [product] SUM of the average annual percentage changes in the 26 consumer price index for all urban consumers (CPI-U) as published by the EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15051-01-4 S. 7266 2 1 United States department of labor bureau of labor statistics for the 2 PRIOR two [year period] YEARS MULTIPLIED BY THE CURRENT PAYOR'S ANNUAL 3 INCOME AMOUNT AND THEN rounded to the nearest one thousand dollars. The 4 office of court administration shall determine and publish the income 5 cap. 6 (6) "Guideline amount of temporary maintenance" shall mean the [sum] 7 DOLLAR AMOUNT derived by the application of paragraph c OR D of this 8 subdivision. 9 (7) ["Guideline duration" shall mean the durational period determined 10 by the application of paragraph d of this subdivision. 11 (8) "Presumptive award" shall mean the guideline amount of the tempo- 12 rary maintenance award for the guideline duration prior to the court's 13 application of any adjustment factors as provided in subparagraph one of 14 paragraph e of this subdivision. 15 (9)] "Self-support reserve" shall mean the self-support reserve as 16 defined in the child support standards act and codified in section two 17 hundred forty of this article and section four hundred thirteen of the 18 family court act. 19 c. [The court shall determine the guideline amount of temporary main- 20 tenance in accordance with the provisions of this paragraph after deter- 21 mining the income of the parties: 22 (1) Where the payor's income is up to and including the income cap: 23 (a) the court shall subtract twenty percent of the income of the payee 24 from thirty percent of the income up to the income cap of the payor. 25 (b) the court shall then multiply the sum of the payor's income up to 26 and including the income cap and all of the payee's income by forty 27 percent. 28 (c) the court shall subtract the income of the payee from the amount 29 derived from clause (b) of this subparagraph. 30 (d) the guideline amount of temporary maintenance shall be the lower 31 of the amounts determined by clauses (a) and (c) of this subparagraph; 32 if the amount determined by clause (c) of this subparagraph is less than 33 or equal to zero, the guideline amount shall be zero dollars. 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 S. 7266 3 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)] WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME 25 CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE- 26 NANCE AS FOLLOWS: 27 (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM 28 THIRTY PERCENT OF THE PAYOR'S INCOME. 29 (2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND 30 THE PAYEE'S INCOME BY FORTY PERCENT. 31 (3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT 32 DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH. 33 (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA- 34 GRAPHS ONE AND THREE OF THIS PARAGRAPH. 35 (5) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE AMOUNT 36 DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF THE 37 AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR 38 EQUAL TO ZERO, THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE 39 ZERO DOLLARS. 40 D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL 41 DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE AS FOLLOWS: 42 (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA- 43 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL 44 INCOMES OF PAYOR AND PAYEE. 45 (2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA- 46 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE 47 INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF 48 PAYEE. 49 (3) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE EITHER: 50 (A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH; 51 OR 52 (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN 53 AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS 54 SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH H OF THIS SUBDIVISION. 55 (4) In any decision made pursuant to CLAUSE (B) OF SUBPARAGRAPH THREE 56 OF this [subparagraph] PARAGRAPH, the court shall set forth the factors S. 7266 4 1 it considered and the reasons for its decision IN WRITING. Such written 2 [order] DECISION may not be waived by either party or counsel. 3 [(3)] E. Notwithstanding the provisions of this [paragraph] SUBDIVI- 4 SION, where the guideline amount of temporary maintenance would reduce 5 the payor's income below the self-support reserve for a single person, 6 [the presumptive amount of] the guideline amount of temporary mainte- 7 nance shall be the difference between the payor's income and the self- 8 support reserve. If the payor's income is below the self-support 9 reserve, there is a rebuttable presumption that no temporary maintenance 10 is awarded. 11 [d.] F. The court shall determine the [guideline] duration of tempo- 12 rary maintenance by considering the length of the marriage. 13 G. Temporary maintenance shall terminate upon the issuance of the 14 [final award] DETERMINATION of POST-DIVORCE maintenance or the death of 15 either party, whichever occurs first. 16 [e.] H. (1) The court shall order the [presumptive award] GUIDELINE 17 AMOUNT of temporary maintenance in accordance with paragraphs c and d of 18 this subdivision, unless the court finds that the [presumptive award] 19 GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE is unjust or inappropriate and 20 adjusts the [presumptive award] GUIDELINE AMOUNT of temporary mainte- 21 nance accordingly based upon consideration of the following factors: 22 (a) [the standard of living of the parties established during the 23 marriage; 24 (b)] the age and health of the parties; 25 [(c)] (B) the PRESENT OR FUTURE earning capacity of the parties, 26 INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE; 27 [(d)] (C) the need of one party to incur education or training 28 expenses; 29 [(e)] (D) the wasteful dissipation of marital property[; 30 (f) the transfer] , INCLUDING TRANSFERS or [encumbrance] ENCUMBRANCES 31 made in contemplation of a matrimonial action without fair consider- 32 ation; 33 [(g)] (E) the existence and duration of a pre-marital joint household 34 or a pre-divorce separate household; 35 [(h)] (F) acts by one party against another that have inhibited or 36 continue to inhibit a party's earning capacity or ability to obtain 37 meaningful employment. Such acts include but are not limited to acts of 38 domestic violence as provided in section four hundred fifty-nine-a of 39 the social services law; 40 [(i)] (G) the availability and cost of medical insurance for the 41 parties; 42 [(j)] (H) the care of [the] children or stepchildren, disabled adult 43 children or stepchildren, elderly parents or in-laws PROVIDED DURING THE 44 MARRIAGE that [has inhibited or continues to inhibit] INHIBITS a party's 45 earning capacity [or ability to obtain meaningful employment]; 46 [(k) the inability of one party to obtain meaningful employment due to 47 age or absence from the workforce; 48 (l)] (I) the need to pay for exceptional additional expenses for the 49 child or children NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT 50 PURSUANT TO THE CHILD SUPPORT STANDARDS ACT, including, but not limited 51 to, schooling, day care and medical treatment; 52 [(m)] (J) the tax consequences to each party; 53 (K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE 54 MARRIAGE; 55 [(n) marital property subject to distribution pursuant to subdivision 56 five of this part; S. 7266 5 1 (o)] (L) the reduced or lost earning capacity of the [party seeking 2 temporary maintenance] PAYEE as a result of having foregone or delayed 3 education, training, employment or career opportunities during the 4 marriage; 5 [(p) the contributions and services of the party seeking temporary 6 maintenance as a spouse, parent, wage earner and homemaker and to the 7 career or career potential of the other party;] and 8 [(q)] (M) any other factor which the court shall expressly find to be 9 just and proper. 10 (2) Where the court finds that the [presumptive award] GUIDELINE 11 AMOUNT of temporary maintenance is unjust or inappropriate and the court 12 adjusts the [presumptive award] GUIDELINE AMOUNT of temporary mainte- 13 nance pursuant to this paragraph, the court shall set forth, in a writ- 14 ten [order] DECISION, the [amount of the unadjusted presumptive award] 15 GUIDELINE AMOUNT of temporary maintenance, the factors it considered, 16 and the reasons that the court adjusted the [presumptive award] GUIDE- 17 LINE AMOUNT of temporary maintenance. Such written [order] DECISION 18 shall not be waived by either party or counsel. 19 (3) Where either or both parties are unrepresented, the court shall 20 not enter a temporary maintenance order unless the COURT INFORMS THE 21 unrepresented party or parties [have been informed] of the [presumptive 22 award] GUIDELINE AMOUNT of temporary maintenance. 23 [f. A validly executed agreement or stipulation voluntarily entered 24 into between the parties in an action commenced after the effective date 25 of this subdivision presented to the court for incorporation in an order 26 shall include a provision stating that the parties have been advised of 27 the provisions of this subdivision, and that the presumptive award 28 provided for therein results in the correct amount of temporary mainte- 29 nance. In the event that such agreement or stipulation deviates from the 30 presumptive award of temporary maintenance, the agreement or stipulation 31 must specify the amount that such presumptive award of temporary mainte- 32 nance would have been and the reason or reasons that such agreement or 33 stipulation does not provide for payment of that amount. Such provision 34 may not be waived by either party or counsel. Nothing contained in this 35 subdivision shall be construed to alter the rights of the parties to 36 voluntarily enter into validly executed agreements or stipulations which 37 deviate from the presumptive award of temporary maintenance provided 38 such agreements or stipulations comply with the provisions of this 39 subdivision. The court shall, however, retain discretion with respect to 40 temporary, and post-divorce maintenance awards pursuant to this section. 41 Any court order incorporating a validly executed agreement or stipu- 42 lation which deviates from the presumptive award of temporary mainte- 43 nance shall set forth the court's reasons for such deviation. 44 g.] I. When a party has defaulted and/or the court is otherwise 45 presented with insufficient evidence to determine [gross] income, the 46 court shall order the temporary maintenance award based upon the needs 47 of the payee or the standard of living of the parties prior to commence- 48 ment of the divorce action, whichever is greater. Such order may be 49 retroactively modified upward without a showing of change in circum- 50 stances upon a showing of newly discovered or obtained evidence. 51 [h.] J. In any action or proceeding for modification of an order of 52 maintenance or alimony existing prior to the effective date of this 53 subdivision, brought pursuant to this article, the temporary maintenance 54 guidelines set forth in this subdivision shall not constitute a change 55 of circumstances warranting modification of such support order. S. 7266 6 1 [i. In any decision made pursuant to this subdivision the court shall, 2 where appropriate, consider the effect of a barrier to remarriage, as 3 defined in subdivision six of section two hundred fifty-three of this 4 article, on the factors enumerated in this subdivision.] 5 K. THE COURT MAY ALLOCATE THE RESPONSIBILITIES OF THE RESPECTIVE 6 SPOUSES FOR THE FAMILY'S EXPENSES DURING THE PENDENCY OF THE PROCEEDING. 7 L. THE TEMPORARY MAINTENANCE ORDER SHALL NOT PREJUDICE THE RIGHTS OF 8 EITHER PARTY REGARDING A POST-DIVORCE MAINTENANCE AWARD. 9 S 2. Subdivision 6 of part B of section 236 of the domestic relations 10 law, as amended by chapter 371 of the laws of 2010, is amended to read 11 as follows: 12 6. Post-divorce maintenance awards. a. Except where the parties have 13 entered into an agreement pursuant to subdivision three of this part 14 providing for maintenance, in any matrimonial action the court [may 15 order maintenance in such amount as justice requires, having regard for 16 the standard of living of the parties established during the marriage, 17 whether the party in whose favor maintenance is granted lacks sufficient 18 property and income to provide for his or her reasonable needs and 19 whether the other party has sufficient property or income to provide for 20 the reasonable needs of the other and the circumstances of the case and 21 of the respective parties. Such order shall be effective as of the date 22 of the application therefor, and any retroactive amount of maintenance 23 due shall be paid in one sum or periodic sums, as the court shall 24 direct, taking into account any amount of temporary maintenance which 25 has been paid. In determining the amount and duration of maintenance the 26 court shall consider: 27 (1) the income and property of the respective parties including mari- 28 tal property distributed pursuant to subdivision five of this part; 29 (2) the length of the marriage; 30 (3) the age and health of both parties; 31 (4) the present and future earning capacity of both parties; 32 (5) the need of one party to incur education or training expenses; 33 (6) the existence and duration of a pre-marital joint household or a 34 pre-divorce separate household; 35 (7) acts by one party against another that have inhibited or continue 36 to inhibit a party's earning capacity or ability to obtain meaningful 37 employment. Such acts include but are not limited to acts of domestic 38 violence as provided in section four hundred fifty-nine-a of the social 39 services law; 40 (8) the ability of the party seeking maintenance to become self-sup- 41 porting and, if applicable, the period of time and training necessary 42 therefor; 43 (9) reduced or lost lifetime earning capacity of the party seeking 44 maintenance as a result of having foregone or delayed education, train- 45 ing, employment, or career opportunities during the marriage; 46 (10) the presence of children of the marriage in the respective homes 47 of the parties; 48 (11) the care of the children or stepchildren, disabled adult children 49 or stepchildren, elderly parents or in-laws that has inhibited or 50 continues to inhibit a party's earning capacity; 51 (12) the inability of one party to obtain meaningful employment due to 52 age or absence from the workforce; 53 (13) the need to pay for exceptional additional expenses for the 54 child/children, including but not limited to, schooling, day care and 55 medical treatment; 56 (14) the tax consequences to each party; S. 7266 7 1 (15) the equitable distribution of marital property; 2 (16) contributions and services of the party seeking maintenance as a 3 spouse, parent, wage earner and homemaker, and to the career or career 4 potential of the other party; 5 (17) the wasteful dissipation of marital property by either spouse; 6 (18) the transfer or encumbrance made in contemplation of a matrimoni- 7 al action without fair consideration; 8 (19) the loss of health insurance benefits upon dissolution of the 9 marriage, and the availability and cost of medical insurance for the 10 parties; and 11 (20) any other factor which the court shall expressly find to be just 12 and proper] SHALL MAKE ITS AWARD FOR POST-DIVORCE MAINTENANCE PURSUANT 13 TO THE PROVISIONS OF THIS SUBDIVISION. 14 b. [In any decision made pursuant to this subdivision, the court shall 15 set forth the factors it considered and the reasons for its decision and 16 such may not be waived by either party or counsel. 17 c. The court may award permanent maintenance, but an award of mainte- 18 nance shall terminate upon the death of either party or upon the recipi- 19 ent's valid or invalid marriage, or upon modification pursuant to para- 20 graph b of subdivision nine of this part or section two hundred 21 forty-eight of this chapter. 22 d. In any decision made pursuant to this subdivision the court shall, 23 where appropriate, consider the effect of a barrier to remarriage, as 24 defined in subdivision six of section two hundred fifty-three of this 25 article, on the factors enumerated in paragraph a of this subdivision.] 26 FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL BE 27 USED: 28 (1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME. 29 (2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME. 30 (3) "INCOME" SHALL MEAN: 31 (A) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED 32 IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED 33 THIRTEEN OF THE FAMILY COURT ACT, EXCEPT THAT TEMPORARY MAINTENANCE PAID 34 PURSUANT TO SUBDIVISION FIVE-A OF THIS PART AND SPOUSAL SUPPORT PAID 35 PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT ACT, SHALL 36 NOT BE DEDUCTED FROM PAYOR'S INCOME; AND 37 (B) INCOME FROM INCOME-PRODUCING PROPERTY DISTRIBUTED OR TO BE 38 DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART. 39 (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND 40 DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU- 41 ARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY TWO YEARS THEREAFTER, 42 THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF THE AVERAGE ANNUAL 43 PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS 44 (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU OF 45 LABOR STATISTICS FOR THE PRIOR TWO YEARS MULTIPLIED BY THE CURRENT 46 PAYOR'S ANNUAL INCOME AMOUNT AND THEN ROUNDED TO THE NEAREST ONE THOU- 47 SAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND 48 PUBLISH THE INCOME CAP. 49 (5) "GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE 50 DOLLAR AMOUNT DERIVED BY THE APPLICATION OF PARAGRAPH C OR D OF THIS 51 SUBDIVISION. 52 (6) "GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE 53 DURATIONAL PERIOD DETERMINED BY THE APPLICATION OF PARAGRAPH E OF THIS 54 SUBDIVISION. S. 7266 8 1 (7) "POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION" SHALL MEAN THE 2 GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE DURATION 3 OF POST-DIVORCE MAINTENANCE. 4 (8) "LENGTH OF MARRIAGE" SHALL MEAN THE PERIOD FROM THE DATE OF 5 MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION. 6 (9) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS 7 DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO 8 HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE 9 FAMILY COURT ACT. 10 C. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP, 11 THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTE- 12 NANCE AS FOLLOWS: 13 (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM 14 THIRTY PERCENT OF THE PAYOR'S INCOME. 15 (2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND 16 THE PAYEE'S INCOME BY FORTY PERCENT. 17 (3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT 18 DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH. 19 (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA- 20 GRAPHS ONE AND THREE OF THIS PARAGRAPH. 21 (5) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE 22 AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF 23 THE AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS 24 THAN OR EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE 25 SHALL BE ZERO DOLLARS. 26 (6) NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, WHERE THE 27 GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE WOULD REDUCE THE PAYOR'S 28 INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE 29 AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE DIFFERENCE BETWEEN THE 30 PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS 31 BELOW THE SELF-SUPPORT RESERVE, THERE IS A REBUTTABLE PRESUMPTION THAT 32 NO POST-DIVORCE MAINTENANCE IS AWARDED. 33 D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL 34 DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AS FOLLOWS: 35 (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA- 36 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL 37 INCOMES OF PAYOR AND PAYEE. 38 (2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA- 39 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE 40 INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF 41 PAYEE. 42 (3) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE EITHER: 43 (A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH; 44 OR 45 (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN 46 AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS 47 SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH F OF THIS SUBDIVISION. 48 (4) IN ANY DECISION MADE PURSUANT TO CLAUSE (B) OF SUBPARAGRAPH THREE 49 OF THIS PARAGRAPH, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED 50 AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN DECISION MAY 51 NOT BE WAIVED BY EITHER PARTY OR COUNSEL. 52 E. THE GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE SHALL BE DETER- 53 MINED AS FOLLOWS: 54 (1) THE COURT SHALL DETERMINE THE GUIDELINE DURATION OF POST-DIVORCE 55 MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE: 56 LENGTH OF THE MARRIAGE PERCENT OF THE LENGTH S. 7266 9 1 OF THE MARRIAGE FOR WHICH 2 MAINTENANCE WILL BE PAYABLE 3 0 UP TO AND INCLUDING 5 YEARS 30% 4 MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS 40% 5 MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS 50% 6 MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS 60% 7 MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS 70% 8 MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS 80% 9 MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS 90% 10 MORE THAN 20, UP TO AND INCLUDING 25 YEARS 100% 11 MORE THAN 25 YEARS NONDURATIONAL 12 (2) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARA- 13 GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE DEATH OF THE 14 PAYOR OR PAYEE OR UPON THE PAYEE'S VALID OR INVALID MARRIAGE. 15 F. (1) THE COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE GUIDELINE 16 OBLIGATION IN ACCORDANCE WITH PARAGRAPHS C, D AND E OF THIS SUBDIVISION, 17 UNLESS THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE OBLI- 18 GATION IS UNJUST OR INAPPROPRIATE AND ADJUSTS THE POST-DIVORCE MAINTE- 19 NANCE GUIDELINE OBLIGATION ACCORDINGLY BASED UPON CONSIDERATION OF THE 20 FOLLOWING FACTORS: 21 (A) THE AGE AND HEALTH OF THE PARTIES; 22 (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING 23 THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE; 24 (C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES; 25 (D) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS 26 OR ENCUMBRANCES MADE IN CONTEMPLATION OF A MATRIMONIAL ACTION WITHOUT 27 FAIR CONSIDERATION; 28 (E) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A 29 PRE-DIVORCE SEPARATE HOUSEHOLD; 30 (F) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE 31 TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL 32 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC 33 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL 34 SERVICES LAW; 35 (G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES; 36 (H) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR 37 STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE 38 THAT INHIBITS A PARTY'S EARNING CAPACITY; 39 (I) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD 40 OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT 41 TO THE CHILD SUPPORT STANDARDS ACT, INCLUDING, BUT NOT LIMITED TO, 42 SCHOOLING, DAY CARE AND MEDICAL TREATMENT; 43 (J) THE TAX CONSEQUENCES TO EACH PARTY; 44 (K) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE 45 MARRIAGE; 46 (L) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF 47 HAVING FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER 48 OPPORTUNITIES DURING THE MARRIAGE; 49 (M) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY; 50 (N) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT, 51 WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE 52 OTHER PARTY; AND 53 (O) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST 54 AND PROPER. 55 (2) WHERE THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE 56 OBLIGATION IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE POST-DI- S. 7266 10 1 VORCE MAINTENANCE GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE 2 COURT SHALL SET FORTH, IN A WRITTEN DECISION, THE UNADJUSTED POST-DI- 3 VORCE MAINTENANCE GUIDELINE OBLIGATION, THE FACTORS IT CONSIDERED, AND 4 THE REASONS THAT THE COURT ADJUSTED THE POST-DIVORCE MAINTENANCE OBLI- 5 GATION. SUCH WRITTEN DECISION SHALL NOT BE WAIVED BY EITHER PARTY OR 6 COUNSEL. 7 G. WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT 8 ENTER A MAINTENANCE ORDER OR JUDGMENT UNLESS THE COURT INFORMS THE 9 UNREPRESENTED PARTY OR PARTIES OF THE POST-DIVORCE MAINTENANCE GUIDELINE 10 OBLIGATION. 11 H. A VALIDLY EXECUTED AGREEMENT OR STIPULATION VOLUNTARILY ENTERED 12 INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE 13 OF THE CHAPTER OF THE LAWS OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS 14 SUBDIVISION PRESENTED TO THE COURT FOR INCORPORATION IN AN ORDER OR 15 JUDGMENT SHALL INCLUDE A PROVISION STATING THAT THE PARTIES HAVE BEEN 16 ADVISED OF THE PROVISIONS OF THIS SUBDIVISION, AND THAT THE POST-DIVORCE 17 MAINTENANCE GUIDELINE OBLIGATION PROVIDED FOR THEREIN WOULD PRESUMPTIVE- 18 LY RESULT IN THE CORRECT AMOUNT OF POST-DIVORCE MAINTENANCE. IN THE 19 EVENT THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE 20 MAINTENANCE GUIDELINE OBLIGATION, THE AGREEMENT OR STIPULATION MUST 21 SPECIFY THE AMOUNT THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLI- 22 GATION WOULD HAVE BEEN AND THE REASON OR REASONS THAT SUCH AGREEMENT OR 23 STIPULATION DOES NOT PROVIDE FOR PAYMENT OF THAT AMOUNT. SUCH PROVISION 24 MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL. NOTHING CONTAINED IN THIS 25 SUBDIVISION SHALL BE CONSTRUED TO ALTER THE RIGHTS OF THE PARTIES TO 26 VOLUNTARILY ENTER INTO VALIDLY EXECUTED AGREEMENTS OR STIPULATIONS WHICH 27 DEVIATE FROM THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION PROVIDED 28 SUCH AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS 29 SUBDIVISION. ANY COURT ORDER INCORPORATING A VALIDLY EXECUTED AGREEMENT 30 OR STIPULATION WHICH DEVIATES FROM THE POST-DIVORCE MAINTENANCE GUIDE- 31 LINE OBLIGATION SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION. 32 I. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED 33 WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER 34 THE POST-DIVORCE MAINTENANCE BASED UPON THE NEEDS OF THE PAYEE OR THE 35 STANDARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE DIVORCE 36 ACTION, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROACTIVELY MODIFIED 37 UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON A SHOWING OF 38 NEWLY DISCOVERED OR OBTAINED 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 FOURTEEN WHICH AMENDED THIS SUBDIVISION, 44 BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN- 45 TENANCE SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF 46 CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER. 47 L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE- 48 NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF 49 THE LAWS OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS SUBDIVISION, 50 BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAIN- 51 TENANCE SET FORTH IN PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL 52 APPLY. 53 M. IN ANY DECISION MADE PURSUANT TO THIS SUBDIVISION THE COURT SHALL, 54 WHERE APPROPRIATE, CONSIDER THE EFFECT OF A BARRIER TO REMARRIAGE, AS 55 DEFINED IN SUBDIVISION SIX OF SECTION TWO HUNDRED FIFTY-THREE OF THIS 56 ARTICLE, ON THE FACTORS ENUMERATED IN PARAGRAPH F OF THIS SUBDIVISION. S. 7266 11 1 S 3. Subparagraph 1 of paragraph b of subdivision 9 of part B of 2 section 236 of the domestic relations law, as amended by chapter 182 of 3 the laws of 2010, is amended to read as follows: 4 (1) Upon application by either party, the court may annul or modify 5 any prior order or judgment as to maintenance, upon a showing of the 6 [recipient's] PAYEE'S inability to be self-supporting or a substantial 7 change in circumstance or termination of child support awarded pursuant 8 to section two hundred forty of this article, including financial hard- 9 ship. Where, after the effective date of this part, a separation agree- 10 ment remains in force no modification of a prior order or judgment 11 incorporating the terms of said agreement shall be made as to mainte- 12 nance without a showing of extreme hardship on either party, in which 13 event the judgment or order as modified shall supersede the terms of the 14 prior agreement and judgment for such period of time and under such 15 circumstances as the court determines. The court shall not reduce or 16 annul any arrears of maintenance which have been reduced to final judg- 17 ment pursuant to section two hundred forty-four of this article. No 18 other arrears of maintenance which have accrued prior to the making of 19 such application shall be subject to modification or annulment unless 20 the defaulting party shows good cause for failure to make application 21 for relief from the judgment or order directing such payment prior to 22 the accrual of such arrears and the facts and circumstances constituting 23 good cause are set forth in a written memorandum of decision. Such 24 modification may increase maintenance nunc pro tunc as of the date of 25 application based on newly discovered evidence. Any retroactive amount 26 of maintenance due shall, except as provided for herein, be paid in one 27 sum or periodic sums, as the court directs, taking into account any 28 temporary or partial payments which have been made. The provisions of 29 this subdivision shall not apply to a separation agreement made prior to 30 the effective date of this part. 31 S 4. Section 412 of the family court act, as amended by chapter 281 of 32 the laws of 1980, is amended to read as follows: 33 S 412. Married person's duty to support spouse. 1. A married person is 34 chargeable with the support of his or her spouse and, [if possessed of 35 sufficient means or able to earn such means, may be required to pay for 36 his or her support a fair and reasonable sum, as the court may deter- 37 mine, having due regard to the circumstances of the respective parties.] 38 EXCEPT WHERE THE PARTIES HAVE ENTERED INTO AN AGREEMENT PURSUANT TO 39 SECTION FOUR HUNDRED TWENTY-FIVE OF THIS ARTICLE PROVIDING FOR SUPPORT, 40 THE COURT SHALL MAKE ITS AWARD FOR SPOUSAL SUPPORT PURSUANT TO THE 41 PROVISIONS OF THIS PART. 42 2. FOR PURPOSES OF THIS SECTION, THE FOLLOWING DEFINITIONS SHALL BE 43 USED: 44 (A) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME. 45 (B) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME. 46 (C) "INCOME" SHALL MEAN INCOME AS DEFINED IN THE CHILD SUPPORT STAND- 47 ARDS ACT AND CODIFIED IN SECTION TWO HUNDRED FORTY OF THE DOMESTIC 48 RELATIONS LAW AND SECTION FOUR HUNDRED THIRTEEN OF THIS PART. 49 (D) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND 50 DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU- 51 ARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY TWO YEARS THEREAFTER, 52 THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF THE AVERAGE ANNUAL 53 PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS 54 (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU OF 55 LABOR STATISTICS FOR THE PRIOR TWO YEARS MULTIPLIED BY THE CURRENT 56 PAYOR'S ANNUAL INCOME AMOUNT AND THEN ROUNDED TO THE NEAREST ONE THOU- S. 7266 12 1 SAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND 2 PUBLISH THE INCOME CAP. 3 (E) "GUIDELINE AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED 4 BY THE APPLICATION OF SUBDIVISION THREE OR FOUR OF THIS SECTION. 5 (F) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS 6 DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO 7 HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW AND SECTION FOUR HUNDRED 8 THIRTEEN OF THIS PART. 9 3. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP, 10 THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS 11 FOLLOWS: 12 (A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM 13 THIRTY PERCENT OF THE PAYOR'S INCOME. 14 (B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND 15 THE PAYEE'S INCOME BY FORTY PERCENT. 16 (C) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT 17 DERIVED FROM PARAGRAPH (B) OF THIS SUBDIVISION. 18 (D) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY PARA- 19 GRAPHS (A) AND (C) OF THIS SUBDIVISION. 20 (E) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER- 21 MINED BY PARAGRAPH (D) OF THIS SUBDIVISION EXCEPT THAT, IF THE AMOUNT 22 DETERMINED BY PARAGRAPH (D) OF THIS SUBDIVISION IS LESS THAN OR EQUAL TO 23 ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS. 24 4. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL 25 DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS: 26 (A) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS 27 (A) THROUGH (D) OF SUBDIVISION THREE OF THIS SECTION FOR THE TOTAL 28 INCOMES OF PAYOR AND PAYEE. 29 (B) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS 30 (A) THROUGH (D) OF SUBDIVISION THREE OF THIS SECTION FOR THE INCOME OF 31 PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE. 32 (C) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE EITHER: 33 (1) THE CALCULATION DERIVED FROM PARAGRAPH (A) OF THIS SUBDIVISION; OR 34 (2) THE AMOUNT DERIVED FROM PARAGRAPH (B) OF THIS SUBDIVISION PLUS AN 35 AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS 36 SET FORTH IN PARAGRAPH (A) OF SUBDIVISION SIX OF THIS SECTION. 37 (D) IN ANY DECISION MADE PURSUANT TO SUBPARAGRAPH TWO OF PARAGRAPH (C) 38 OF THIS SUBDIVISION, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED 39 AND THE REASONS FOR ITS DECISION IN WRITING. SUCH WRITTEN DECISION MAY 40 NOT BE WAIVED BY EITHER PARTY OR COUNSEL. 41 5. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WHERE THE GUIDELINE 42 AMOUNT OF SPOUSAL SUPPORT WOULD REDUCE THE PAYOR'S INCOME BELOW THE 43 SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE AMOUNT OF SPOUS- 44 AL SUPPORT SHALL BE THE DIFFERENCE BETWEEN THE PAYOR'S INCOME AND THE 45 SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS BELOW THE SELF-SUPPORT 46 RESERVE, THERE IS A REBUTTABLE PRESUMPTION THAT NO SPOUSAL SUPPORT IS 47 AWARDED. 48 6. (A) THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT 49 IN ACCORDANCE WITH SUBDIVISIONS THREE AND FOUR OF THIS SECTION, UNLESS 50 THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT IS UNJUST 51 OR INAPPROPRIATE AND ADJUSTS THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT 52 ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING FACTORS: 53 (1) THE AGE AND HEALTH OF THE PARTIES; 54 (2) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING 55 THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE; 56 (3) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES; S. 7266 13 1 (4) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS 2 OR ENCUMBRANCES MADE IN CONTEMPLATION OF A SUPPORT PROCEEDING WITHOUT 3 FAIR CONSIDERATION; 4 (5) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A 5 PRE-SUPPORT PROCEEDINGS SEPARATE HOUSEHOLD; 6 (6) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE 7 TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL 8 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC 9 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL 10 SERVICES LAW; 11 (7) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES; 12 (8) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR 13 STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE 14 THAT INHIBITS A PARTY'S EARNING CAPACITY; 15 (9) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE CHILD 16 OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT 17 TO THE CHILD SUPPORT STANDARDS ACT, INCLUDING, BUT NOT LIMITED TO, 18 SCHOOLING, DAY CARE AND MEDICAL TREATMENT; 19 (10) THE TAX CONSEQUENCES TO EACH PARTY; 20 (11) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE 21 MARRIAGE; 22 (12) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF 23 HAVING FOREGONE OR DELAYED EDUCATION, TRAINING, EMPLOYMENT OR CAREER 24 OPPORTUNITIES DURING THE MARRIAGE; 25 (13) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT, 26 WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE 27 OTHER PARTY; AND 28 (14) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST 29 AND PROPER. 30 (B) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT 31 IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE GUIDELINE AMOUNT OF 32 SPOUSAL SUPPORT PURSUANT TO THIS SUBDIVISION, THE COURT SHALL SET FORTH, 33 IN A WRITTEN DECISION, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT, THE 34 FACTORS IT CONSIDERED, AND THE REASONS THAT THE COURT ADJUSTED THE 35 GUIDELINE AMOUNT OF SPOUSAL SUPPORT. SUCH WRITTEN DECISION SHALL NOT BE 36 WAIVED BY EITHER PARTY OR COUNSEL. 37 (C) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL 38 NOT ENTER A SPOUSAL SUPPORT ORDER UNLESS THE COURT INFORMS THE UNREPRE- 39 SENTED PARTY OR PARTIES OF THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT. 40 7. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED 41 WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER 42 THE SPOUSAL SUPPORT AWARD BASED UPON THE NEEDS OF THE PAYEE OR THE STAN- 43 DARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE SPOUSAL 44 SUPPORT PROCEEDING, WHICHEVER IS GREATER. SUCH ORDER MAY BE RETROAC- 45 TIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON 46 A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE. 47 8. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF SPOUSAL 48 SUPPORT EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS 49 OF TWO THOUSAND FOURTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO 50 THIS ARTICLE, THE SPOUSAL SUPPORT GUIDELINES SET FORTH IN THIS SECTION 51 SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANTING MODIFICATION 52 OF SUCH SPOUSAL SUPPORT ORDER. 53 S 5. Paragraph a of subdivision 1 of part B of section 236 of the 54 domestic relations law, as amended by chapter 371 of the laws of 2010, 55 is amended to read as follows: S. 7266 14 1 a. The term "maintenance" shall mean payments provided for in a valid 2 agreement between the parties or awarded by the court in accordance with 3 the provisions of subdivisions five-a and six of this part, to be paid 4 at fixed intervals for a definite or indefinite period of time, but an 5 award of maintenance shall terminate upon the death of either party or 6 upon the [recipient's] PAYEE'S valid or invalid marriage, or upon 7 modification pursuant to paragraph (b) of subdivision nine of [section 8 two hundred thirty-six of] this part or section two hundred forty-eight 9 of this chapter. 10 S 6. Subparagraph 7 of paragraph d of subdivision 5 of part B of 11 section 236 of the domestic relations law, as amended by chapter 281 of 12 the laws of 1980 and as renumbered by chapter 229 of the laws of 2009, 13 is amended to read as follows: 14 (7) any equitable claim to, interest in, or direct or indirect 15 contribution made to the acquisition of such marital property by the 16 party not having title, including joint efforts or expenditures and 17 contributions and services as a spouse, parent, wage earner and homemak- 18 er, and to the career or career potential of the other party. THE COURT 19 SHALL NOT CONSIDER AS MARITAL PROPERTY SUBJECT TO DISTRIBUTION THE VALUE 20 OF A SPOUSE'S ENHANCED EARNING CAPACITY ARISING FROM A LICENSE, DEGREE, 21 CELEBRITY GOODWILL, OR CAREER ENHANCEMENT. HOWEVER, IN ARRIVING AT AN 22 EQUITABLE DIVISION OF MARITAL PROPERTY, THE COURT SHALL CONSIDER THE 23 DIRECT OR INDIRECT CONTRIBUTIONS TO THE DEVELOPMENT DURING THE MARRIAGE 24 OF THE ENHANCED EARNING CAPACITY OF THE OTHER SPOUSE; 25 S 7. Section 248 of the domestic relations law, as amended by chapter 26 604 of the laws of 1975, is amended to read as follows: 27 S 248. Modification of judgment or order in action for divorce or 28 annulment. Where an action for divorce or for annulment or for a decla- 29 ration of the nullity of a void marriage is brought by a husband or 30 wife, and a final judgment of divorce or a final judgment annulling the 31 marriage or declaring its nullity has been rendered, the court, by order 32 upon the application of the [husband] PAYOR on notice, and on proof of 33 the marriage of the [wife] PAYEE after such final judgment, must modify 34 such final judgment and any orders made with respect thereto by annull- 35 ing the provisions of such final judgment or orders, or of both, direct- 36 ing payments of money for the support of the [wife] PAYEE. The court in 37 its discretion upon application of the [husband] PAYOR on notice, upon 38 proof that the [wife] PAYEE is habitually living with another [man] 39 PERSON and holding HIMSELF OR herself out as [his wife] THE SPOUSE OF 40 SUCH OTHER PERSON, although not married to such [man] OTHER PERSON, may 41 modify such final judgment and any orders made with respect thereto by 42 annulling the provisions of such final judgment or orders or of both, 43 directing payment of money for the support of such [wife] PAYEE. 44 S 8. This act shall take effect on the sixtieth day after it shall 45 have become a law.