There is a newer version of the New York Consolidated Laws
2010 New York Code
DOM - Domestic Relations
Article 13 - (230 - 255) PROVISIONS APPLICABLE TO MORE THAN ONE TYPE OF MATRIMONIAL ACTION
236 - Special controlling provisions; prior actions or proceedings; new actions or proceedings.
§ 236. Special controlling provisions; prior actions or proceedings;
new actions or proceedings. Except as otherwise expressly provided in
this section, the provisions of part A shall be controlling with respect
to any action or proceeding commenced prior to the date on which the
provisions of this section as amended become effective and the
provisions of part B shall be controlling with respect to any action or
proceeding commenced on or after such effective date. Any reference to
this section or the provisions hereof in any action, proceeding,
judgment, order, rule or agreement shall be deemed and construed to
refer to either the provisions of part A or part B respectively and
exclusively, determined as provided in this paragraph any inconsistent
provision of law notwithstanding.
PART A
PRIOR ACTIONS OR PROCEEDINGS
Alimony, temporary and permanent. 1. Alimony. In any action or
proceeding brought (1) during the lifetime of both parties to the
marriage to annul a marriage or declare the nullity of a void marriage,
or (2) for a separation, or (3) for a divorce, the court may direct
either spouse to provide suitably for the support of the other as, in
the court's discretion, justice requires, having regard to the length of
time of the marriage, the ability of each spouse to be self supporting,
the circumstances of the case and of the respective parties. Such
direction may require the payment of a sum or sums of money either
directly to either spouse or to third persons for real and personal
property and services furnished to either spouse, or for the rental of
or mortgage amortization or interest payments, insurance, taxes, repairs
or other carrying charges on premises occupied by either spouse, or for
both payments to either spouse and to such third persons. Such direction
shall be effective as of the date of the application therefor, and any
retroactive amount of alimony due shall be paid in one sum or periodic
sums, as the court shall direct, taking into account any amount of
temporary alimony which has been paid. Such direction may be made in the
final judgment in such action or proceeding, or by one or more orders
from time to time before or subsequent to final judgment, or by both
such order or orders and the final judgment. Such direction may be made
notwithstanding that the parties continue to reside in the same abode
and notwithstanding that the court refuses to grant the relief requested
by either spouse (1) by reason of a finding by the court that a divorce,
annulment or judgment declaring the marriage a nullity had previously
been granted to either spouse in an action in which jurisdiction over
the person of the other spouse was not obtained, or (2) by reason of the
misconduct of the other spouse, unless such misconduct would itself
constitute grounds for separation or divorce, or (3) by reason of a
failure of proof of the grounds of either spouse's action or
counterclaim. Any order or judgment made as in this section provided may
combine in one lump sum any amount payable to either spouse under this
section with any amount payable to either spouse under section two
hundred forty of this chapter. Upon the application of either spouse,
upon such notice to the other party and given in such manner as the
court shall direct, the court may annul or modify any such direction,
whether made by order or by final judgment, or in case no such direction
shall have been made in the final judgment may, with respect to any
judgment of annulment or declaring the nullity of a void marriage
rendered on or after September first, nineteen hundred forty or any
judgment of separation or divorce whenever rendered, amend the judgment
by inserting such direction. Subject to the provisions of section two
hundred forty-four of this chapter, no such modification or annulment
shall reduce or annul arrears accrued prior to the making of such
application unless the defaulting party shows good cause for failure to
make application for relief from the judgment or order directing such
payment prior to the accrual of such arrears. Such modification may
increase such support nunc pro tunc based on newly discovered evidence.
2. Compulsory financial disclosure. In all matrimonial actions and
proceedings commenced on or after September first, nineteen hundred
seventy-five in supreme court in which alimony, maintenance or support
is in issue and all support proceedings in family court, there shall be
compulsory disclosure by both parties of their respective financial
states. No showing of special circumstances shall be required before
such disclosure is ordered. A sworn statement of net worth shall be
provided upon receipt of a notice in writing demanding the same, within
twenty days after the receipt thereof. In the event said statement is
not demanded, it shall be filed by each party, within ten days after
joinder of issue, in the court in which the procedure is pending. As
used in this section, the term net worth shall mean the amount by which
total assets including income exceed total liabilities including fixed
financial obligations. It shall include all income and assets of
whatsoever kind and nature and wherever situated and shall include a
list of all assets transferred in any manner during the preceding three
years, or the length of the marriage, whichever is shorter; provided,
however that transfers in the routine course of business which resulted
in an exchange of assets of substantially equivalent value need not be
specifically disclosed where such assets are otherwise identified in the
statement of net worth. Noncompliance shall be punishable by any or all
of the penalties prescribed in section thirty-one hundred twenty-six of
the civil practice law and rules, in examination before or during trial.
PART B
NEW ACTIONS OR PROCEEDINGS
Maintenance and distributive award. 1. Definitions. Whenever used in
this part, the following terms shall have the respective meanings
hereinafter set forth or indicated:
* a. The term "maintenance" shall mean payments provided for in a
valid agreement between the parties or awarded by the court in
accordance with the provisions of subdivision six of this part, to be
paid at fixed intervals for a definite or indefinite period of time, but
an award of maintenance shall terminate upon the death of either party
or upon the recipient's valid or invalid marriage, or upon modification
pursuant to paragraph (b) of subdivision nine of section two hundred
thirty-six of this part or section two hundred forty-eight of this
chapter.
* NB Effective until October 12, 2010
* a. The term "maintenance" shall mean payments provided for in a
valid agreement between the parties or awarded by the court in
accordance with the provisions of subdivisions five-a and six of this
part, to be paid at fixed intervals for a definite or indefinite period
of time, but an award of maintenance shall terminate upon the death of
either party or upon the recipient's valid or invalid marriage, or upon
modification pursuant to paragraph (b) of subdivision nine of section
two hundred thirty-six of this part or section two hundred forty-eight
of this chapter.
* NB Effective October 12, 2010
b. The term "distributive award" shall mean payments provided for in a
valid agreement between the parties or awarded by the court, in lieu of
or to supplement, facilitate or effectuate the division or distribution
of property where authorized in a matrimonial action, and payable either
in a lump sum or over a period of time in fixed amounts. Distributive
awards shall not include payments which are treated as ordinary income
to the recipient under the provisions of the United States Internal
Revenue Code.
c. The term "marital property" shall mean all property acquired by
either or both spouses during the marriage and before the execution of a
separation agreement or the commencement of a matrimonial action,
regardless of the form in which title is held, except as otherwise
provided in agreement pursuant to subdivision three of this part.
Marital property shall not include separate property as hereinafter
defined.
d. The term separate property shall mean:
(1) property acquired before marriage or property acquired by bequest,
devise, or descent, or gift from a party other than the spouse;
(2) compensation for personal injuries;
(3) property acquired in exchange for or the increase in value of
separate property, except to the extent that such appreciation is due in
part to the contributions or efforts of the other spouse;
(4) property described as separate property by written agreement of
the parties pursuant to subdivision three of this part.
e. The term "custodial parent" shall mean a parent to whom custody of
a child or children is granted by a valid agreement between the parties
or by an order or decree of a court.
f. The term "child support" shall mean a sum paid pursuant to court
order or decree by either or both parents or pursuant to a valid
agreement between the parties for care, maintenance and education of any
unemancipated child under the age of twenty-one years.
2. Matrimonial actions. a. Except as provided in subdivision five of
this part, the provisions of this part shall be applicable to actions
for an annulment or dissolution of a marriage, for a divorce, for a
separation, for a declaration of the nullity of a void marriage, for a
declaration of the validity or nullity of a foreign judgment of divorce,
for a declaration of the validity or nullity of a marriage, and to
proceedings to obtain maintenance or a distribution of marital property
following a foreign judgment of divorce, commenced on and after the
effective date of this part. Any application which seeks a modification
of a judgment, order or decree made in an action commenced prior to the
effective date of this part shall be heard and determined in accordance
with the provisions of part A of this section.
b. With respect to matrimonial actions which commence on or after the
effective date of this paragraph, the plaintiff shall cause to be served
upon the defendant, simultaneous with the service of the summons, a copy
of the automatic orders set forth in this paragraph. The automatic
orders shall be binding upon the plaintiff in a matrimonial action
immediately upon the filing of the summons, or summons and complaint,
and upon the defendant immediately upon the service of the automatic
orders with the summons. The automatic orders shall remain in full force
and effect during the pendency of the action, unless terminated,
modified or amended by further order of the court upon motion of either
of the parties or upon written agreement between the parties duly
executed and acknowledged. The automatic orders are as follows:
(1) Neither party shall sell, transfer, encumber, conceal, assign,
remove or in any way dispose of, without the consent of the other party
in writing, or by order of the court, any property (including, but not
limited to, real estate, personal property, cash accounts, stocks,
mutual funds, bank accounts, cars and boats) individually or jointly
held by the parties, except in the usual course of business, for
customary and usual household expenses or for reasonable attorney's fees
in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw
or in any way dispose of any tax deferred funds, stocks or other assets
held in any individual retirement accounts, 401K accounts, profit
sharing plans, Keogh accounts, or any other pension or retirement
account, and the parties shall further refrain from applying for or
requesting the payment of retirement benefits or annuity payments of any
kind, without the consent of the other party in writing, or upon further
order of the court; except that any party who is already in pay status
may continue to receive such payments thereunder.
(3) Neither party shall incur unreasonable debts hereafter, including,
but not limited to further borrowing against any credit line secured by
the family residence, further encumbrancing any assets, or unreasonably
using credit cards or cash advances against credit cards, except in the
usual course of business or for customary or usual household expenses,
or for reasonable attorney's fees in connection with this action.
(4) Neither party shall cause the other party or the children of the
marriage to be removed from any existing medical, hospital and dental
insurance coverage, and each party shall maintain the existing medical,
hospital and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life
insurance policies, and each party shall maintain the existing life
insurance, automobile insurance, homeowners and renters insurance
policies in full force and effect.
3. Agreement of the parties. An agreement by the parties, made before
or during the marriage, shall be valid and enforceable in a matrimonial
action if such agreement is in writing, subscribed by the parties, and
acknowledged or proven in the manner required to entitle a deed to be
recorded. Notwithstanding any other provision of law, an acknowledgment
of an agreement made before marriage may be executed before any person
authorized to solemnize a marriage pursuant to subdivisions one, two and
three of section eleven of this chapter. Such an agreement may include
(1) a contract to make a testamentary provision of any kind, or a waiver
of any right to elect against the provisions of a will; (2) provision
for the ownership, division or distribution of separate and marital
property; (3) provision for the amount and duration of maintenance or
other terms and conditions of the marriage relationship, subject to the
provisions of section 5-311 of the general obligations law, and provided
that such terms were fair and reasonable at the time of the making of
the agreement and are not unconscionable at the time of entry of final
judgment; and (4) provision for the custody, care, education and
maintenance of any child of the parties, subject to the provisions of
section two hundred forty of this article. Nothing in this subdivision
shall be deemed to affect the validity of any agreement made prior to
the effective date of this subdivision.
4. Compulsory financial disclosure. a. In all matrimonial actions and
proceedings in which alimony, maintenance or support is in issue, there
shall be compulsory disclosure by both parties of their respective
financial states. No showing of special circumstances shall be required
before such disclosure is ordered. A sworn statement of net worth shall
be provided upon receipt of a notice in writing demanding the same,
within twenty days after the receipt thereof. In the event said
statement is not demanded, it shall be filed with the clerk of the court
by each party, within ten days after joinder of issue, in the court in
which the proceeding is pending. As used in this part, the term "net
worth" shall mean the amount by which total assets including income
exceed total liabilities including fixed financial obligations. It shall
include all income and assets of whatsoever kind and nature and wherever
situated and shall include a list of all assets transferred in any
manner during the preceding three years, or the length of the marriage,
whichever is shorter; provided, however that transfers in the routine
course of business which resulted in an exchange of assets of
substantially equivalent value need not be specifically disclosed where
such assets are otherwise identified in the statement of net worth. All
such sworn statements of net worth shall be accompanied by a current and
representative paycheck stub and the most recently filed state and
federal income tax returns including a copy of the W-2(s) wage and tax
statement(s) submitted with the returns. In addition, both parties shall
provide information relating to any and all group health plans available
to them for the provision of care or other medical benefits by insurance
or otherwise for the benefit of the child or children for whom support
is sought, including all such information as may be required to be
included in a qualified medical child support order as defined in
section six hundred nine of the employee retirement income security act
of 1974 (29 USC 1169) including, but not limited to: (i) the name and
last known mailing address of each party and of each dependent to be
covered by the order; (ii) the identification and a description of each
group health plan available for the benefit or coverage of the
disclosing party and the child or children for whom support is sought;
(iii) a detailed description of the type of coverage available from each
group health plan for the potential benefit of each such dependent; (iv)
the identification of the plan administrator for each such group health
plan and the address of such administrator; (v) the identification
numbers for each such group health plan; and (vi) such other information
as may be required by the court. Noncompliance shall be punishable by
any or all of the penalties prescribed in section thirty-one hundred
twenty-six of the civil practice law and rules, in examination before or
during trial.
b. As soon as practicable after a matrimonial action has been
commenced, the court shall set the date or dates the parties shall use
for the valuation of each asset. The valuation date or dates may be
anytime from the date of commencement of the action to the date of
trial.
5. Disposition of property in certain matrimonial actions. a. Except
where the parties have provided in an agreement for the disposition of
their property pursuant to subdivision three of this part, the court, in
an action wherein all or part of the relief granted is divorce, or the
dissolution, annulment or declaration of the nullity of a marriage, and
in proceedings to obtain a distribution of marital property following a
foreign judgment of divorce, shall determine the respective rights of
the parties in their separate or marital property, and shall provide for
the disposition thereof in the final judgment.
b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the
parties, considering the circumstances of the case and of the respective
parties.
d. In determining an equitable disposition of property under paragraph
c, the court shall consider:
(1) the income and property of each party at the time of marriage, and
at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both
parties;
(3) the need of a custodial parent to occupy or own the marital
residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the
marriage as of the date of dissolution;
(5) the loss of health insurance benefits upon dissolution of the
marriage;
(6) any award of maintenance under subdivision six of this part;
(7) any equitable claim to, interest in, or direct or indirect
contribution made to the acquisition of such marital property by the
party not having title, including joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and
homemaker, and to the career or career potential of the other party;
(8) the liquid or non-liquid character of all marital property;
(9) the probable future financial circumstances of each party;
(10) the impossibility or difficulty of evaluating any component asset
or any interest in a business, corporation or profession, and the
economic desirability of retaining such asset or interest intact and
free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
(14) any other factor which the court shall expressly find to be just
and proper.
e. In any action in which the court shall determine that an equitable
distribution is appropriate but would be impractical or burdensome or
where the distribution of an interest in a business, corporation or
profession would be contrary to law, the court in lieu of such equitable
distribution shall make a distributive award in order to achieve equity
between the parties. The court in its discretion, also may make a
distributive award to supplement, facilitate or effectuate a
distribution of marital property.
f. In addition to the disposition of property as set forth above, the
court may make such order regarding the use and occupancy of the marital
home and its household effects as provided in section two hundred
thirty-four of this chapter, without regard to the form of ownership of
such property.
g. In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
h. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph d of this subdivision.
* 5-a. Temporary maintenance awards. a. Except where the parties have
entered into an agreement pursuant to subdivision three of this part
providing for maintenance, in any matrimonial action the court shall
make its award for temporary maintenance pursuant to the provisions of
this subdivision.
b. For purposes of this subdivision, the following definitions shall
be used:
(1) "Payor" shall mean the spouse with the higher income.
(2) "Payee" shall mean the spouse with the lower income.
(3) "Length of marriage" shall mean the period from the date of
marriage until the date of commencement of action.
(4) "Income" shall mean:
(a) income as defined in the child support standards act and codified
in section two hundred forty of this article and section four hundred
thirteen of the family court act; and
(b) income from income producing property to be distributed pursuant
to subdivision five of this part.
(5) "Income cap" shall mean up to and including five hundred thousand
dollars of the payor's annual income; provided, however, beginning
January thirty-first, two thousand twelve and every two years
thereafter, the payor's annual income amount shall increase by the
product of the average annual percentage changes in the consumer price
index for all urban consumers (CPI-U) as published by the United States
department of labor bureau of labor statistics for the two year period
rounded to the nearest one thousand dollars. The office of court
administration shall determine and publish the income cap.
(6) "Guideline amount of temporary maintenance" shall mean the sum
derived by the application of paragraph c of this subdivision.
(7) "Guideline duration" shall mean the durational period determined
by the application of paragraph d of this subdivision.
(8) "Presumptive award" shall mean the guideline amount of the
temporary maintenance award for the guideline duration prior to the
court's application of any adjustment factors as provided in
subparagraph one of paragraph e of this subdivision.
(9) "Self-support reserve" shall mean the self-support reserve as
defined in the child support standards act and codified in section two
hundred forty of this article and section four hundred thirteen of the
family court act.
c. The court shall determine the guideline amount of temporary
maintenance in accordance with the provisions of this paragraph after
determining the income of the parties:
(1) Where the payor's income is up to and including the income cap:
(a) the court shall subtract twenty percent of the income of the payee
from thirty percent of the income up to the income cap of the payor.
(b) the court shall then multiply the sum of the payor's income up to
and including the income cap and all of the payee's income by forty
percent.
(c) the court shall subtract the income of the payee from the amount
derived from clause (b) of this subparagraph.
(d) the guideline amount of temporary maintenance shall be the lower
of the amounts determined by clauses (a) and (c) of this subparagraph;
if the amount determined by clause (c) of this subparagraph is less than
or equal to zero, the guideline amount shall be zero dollars.
(2) Where the income of the payor exceeds the income cap:
(a) the court shall determine the guideline amount of temporary
maintenance for that portion of the payor's income that is up to and
including the income cap according to subparagraph one of this
paragraph, and, for the payor's income in excess of the income cap, the
court shall determine any additional guideline amount of temporary
maintenance through consideration of the following factors:
(i) the length of the marriage;
(ii) the substantial differences in the incomes of the parties;
(iii) the standard of living of the parties established during the
marriage;
(iv) the age and health of the parties;
(v) the present and future earning capacity of the parties;
(vi) the need of one party to incur education or training expenses;
(vii) the wasteful dissipation of marital property;
(viii) the transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
(ix) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(x) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(xi) the availability and cost of medical insurance for the parties;
(xii) the care of the children or stepchildren, disabled adult
children or stepchildren, elderly parents or in-laws that has inhibited
or continues to inhibit a party's earning capacity or ability to obtain
meaningful employment;
(xiii) the inability of one party to obtain meaningful employment due
to age or absence from the workforce;
(xiv) the need to pay for exceptional additional expenses for the
child or children, including, but not limited to, schooling, day care
and medical treatment;
(xv) the tax consequences to each party;
(xvi) marital property subject to distribution pursuant to subdivision
five of this part;
(xvii) the reduced or lost earning capacity of the party seeking
temporary maintenance as a result of having foregone or delayed
education, training, employment or career opportunities during the
marriage;
(xviii) the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and
(xix) any other factor which the court shall expressly find to be just
and proper.
(b) In any decision made pursuant to this subparagraph, the court
shall set forth the factors it considered and the reasons for its
decision. Such written order may not be waived by either party or
counsel.
(3) Notwithstanding the provisions of this paragraph, where the
guideline amount of temporary maintenance would reduce the payor's
income below the self-support reserve for a single person, the
presumptive amount of the guideline amount of temporary maintenance
shall be the difference between the payor's income and the self-support
reserve. If the payor's income is below the self-support reserve, there
is a rebuttable presumption that no temporary maintenance is awarded.
d. The court shall determine the guideline duration of temporary
maintenance by considering the length of the marriage. Temporary
maintenance shall terminate upon the issuance of the final award of
maintenance or the death of either party, whichever occurs first.
e. (1) The court shall order the presumptive award of temporary
maintenance in accordance with paragraphs c and d of this subdivision,
unless the court finds that the presumptive award is unjust or
inappropriate and adjusts the presumptive award of temporary maintenance
accordingly based upon consideration of the following factors:
(a) the standard of living of the parties established during the
marriage;
(b) the age and health of the parties;
(c) the earning capacity of the parties;
(d) the need of one party to incur education or training expenses;
(e) the wasteful dissipation of marital property;
(f) the transfer or encumbrance made in contemplation of a matrimonial
action without fair consideration;
(g) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(h) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(i) the availability and cost of medical insurance for the parties;
(j) the care of the children or stepchildren, disabled adult children
or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity or ability to obtain
meaningful employment;
(k) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
(l) the need to pay for exceptional additional expenses for the child
or children, including, but not limited to, schooling, day care and
medical treatment;
(m) the tax consequences to each party;
(n) marital property subject to distribution pursuant to subdivision
five of this part;
(o) the reduced or lost earning capacity of the party seeking
temporary maintenance as a result of having foregone or delayed
education, training, employment or career opportunities during the
marriage;
(p) the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and
(q) any other factor which the court shall expressly find to be just
and proper.
(2) Where the court finds that the presumptive award of temporary
maintenance is unjust or inappropriate and the court adjusts the
presumptive award of temporary maintenance pursuant to this paragraph,
the court shall set forth, in a written order, the amount of the
unadjusted presumptive award of temporary maintenance, the factors it
considered, and the reasons that the court adjusted the presumptive
award of temporary maintenance. Such written order shall not be waived
by either party or counsel.
(3) Where either or both parties are unrepresented, the court shall
not enter a temporary maintenance order unless the unrepresented party
or parties have been informed of the presumptive award of temporary
maintenance.
f. A validly executed agreement or stipulation voluntarily entered
into between the parties in an action commenced after the effective date
of this subdivision presented to the court for incorporation in an order
shall include a provision stating that the parties have been advised of
the provisions of this subdivision, and that the presumptive award
provided for therein results in the correct amount of temporary
maintenance. In the event that such agreement or stipulation deviates
from the presumptive award of temporary maintenance, the agreement or
stipulation must specify the amount that such presumptive award of
temporary maintenance would have been and the reason or reasons that
such agreement or stipulation does not provide for payment of that
amount. Such provision may not be waived by either party or counsel.
Nothing contained in this subdivision shall be construed to alter the
rights of the parties to voluntarily enter into validly executed
agreements or stipulations which deviate from the presumptive award of
temporary maintenance provided such agreements or stipulations comply
with the provisions of this subdivision. The court shall, however,
retain discretion with respect to temporary, and post-divorce
maintenance awards pursuant to this section. Any court order
incorporating a validly executed agreement or stipulation which deviates
from the presumptive award of temporary maintenance shall set forth the
court's reasons for such deviation.
g. When a party has defaulted and/or the court is otherwise presented
with insufficient evidence to determine gross income, the court shall
order the temporary maintenance award based upon the needs of the payee
or the standard of living of the parties prior to commencement of the
divorce action, whichever is greater. Such order may be retroactively
modified upward without a showing of change in circumstances upon a
showing of newly discovered or obtained evidence.
h. In any action or proceeding for modification of an order of
maintenance or alimony existing prior to the effective date of this
subdivision, brought pursuant to this article, the temporary maintenance
guidelines set forth in this subdivision shall not constitute a change
of circumstances warranting modification of such support order.
i. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in this subdivision.
* NB Effective October 12, 2010
* 6. Maintenance. a. Except where the parties have entered into an
agreement pursuant to subdivision three of this part providing for
maintenance, in any matrimonial action the court may order temporary
maintenance or maintenance in such amount as justice requires, having
regard for the standard of living of the parties established during the
marriage, whether the party in whose favor maintenance is granted lacks
sufficient property and income to provide for his or her reasonable
needs and whether the other party has sufficient property or income to
provide for the reasonable needs of the other and the circumstances of
the case and of the respective parties. Such order shall be effective as
of the date of the application therefor, and any retroactive amount of
maintenance due shall be paid in one sum or periodic sums, as the court
shall direct, taking into account any amount of temporary maintenance
which has been paid. In determining the amount and duration of
maintenance the court shall consider:
(1) the income and property of the respective parties including
marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both
parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become
self-supporting and, if applicable, the period of time and training
necessary therefor;
(5) reduced or lost lifetime earning capacity of the party seeking
maintenance as a result of having foregone or delayed education,
training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes
of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a
spouse, parent, wage earner and homemaker, and to the career or career
potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
(11) the loss of health insurance benefits upon dissolution of the
marriage; and
(12) any other factor which the court shall expressly find to be just
and proper.
b. In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
c. The court may award permanent maintenance, but an award of
maintenance shall terminate upon the death of either party or upon the
recipient's valid or invalid marriage, or upon modification pursuant to
paragraph (b) of subdivision nine of section two hundred thirty-six of
this part or section two hundred forty-eight of this chapter.
d. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph a of this subdivision.
* NB Effective until October 12, 2010
* 6. Post-divorce maintenance awards. a. Except where the parties have
entered into an agreement pursuant to subdivision three of this part
providing for maintenance, in any matrimonial action the court may order
maintenance in such amount as justice requires, having regard for the
standard of living of the parties established during the marriage,
whether the party in whose favor maintenance is granted lacks sufficient
property and income to provide for his or her reasonable needs and
whether the other party has sufficient property or income to provide for
the reasonable needs of the other and the circumstances of the case and
of the respective parties. Such order shall be effective as of the date
of the application therefor, and any retroactive amount of maintenance
due shall be paid in one sum or periodic sums, as the court shall
direct, taking into account any amount of temporary maintenance which
has been paid. In determining the amount and duration of maintenance the
court shall consider:
(1) the income and property of the respective parties including
marital property distributed pursuant to subdivision five of this part;
(2) the length of the marriage;
(3) the age and health of both parties;
(4) the present and future earning capacity of both parties;
(5) the need of one party to incur education or training expenses;
(6) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(7) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(8) the ability of the party seeking maintenance to become
self-supporting and, if applicable, the period of time and training
necessary therefor;
(9) reduced or lost lifetime earning capacity of the party seeking
maintenance as a result of having foregone or delayed education,
training, employment, or career opportunities during the marriage;
(10) the presence of children of the marriage in the respective homes
of the parties;
(11) the care of the children or stepchildren, disabled adult children
or stepchildren, elderly parents or in-laws that has inhibited or
continues to inhibit a party's earning capacity;
(12) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
(13) the need to pay for exceptional additional expenses for the
child/children, including but not limited to, schooling, day care and
medical treatment;
(14) the tax consequences to each party;
(15) the equitable distribution of marital property;
(16) contributions and services of the party seeking maintenance as a
spouse, parent, wage earner and homemaker, and to the career or career
potential of the other party;
(17) the wasteful dissipation of marital property by either spouse;
(18) the transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
(19) the loss of health insurance benefits upon dissolution of the
marriage, and the availability and cost of medical insurance for the
parties; and
(20) any other factor which the court shall expressly find to be just
and proper.
b. In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
c. The court may award permanent maintenance, but an award of
maintenance shall terminate upon the death of either party or upon the
recipient's valid or invalid marriage, or upon modification pursuant to
paragraph b of subdivision nine of this part or section two hundred
forty-eight of this chapter.
d. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph a of this subdivision.
* NB Effective October 12, 2010
6-a. Law revision commission study. a. The legislature hereby finds
and declares it to be the policy of the state that it is necessary to
achieve equitable outcomes when families divorce and it is important to
ensure that the economic consequences of a divorce are fairly shared by
divorcing couples. Serious concerns have been raised that the
implementation of New York state's maintenance laws have not resulted in
equitable results. Maintenance is often not granted and where it is
granted, the results are inconsistent and unpredictable. This raises
serious concerns about the ability of our current maintenance laws to
achieve equitable and fair outcomes.
The legislature further finds a comprehensive review of the provisions
of our state's maintenance laws should be undertaken. It has been thirty
years since the legislature significantly reformed our state's divorce
laws by enacting equitable distribution of marital property and
introduced the concept of maintenance to replace alimony. Concerns that
the implementation of our maintenance laws have not resulted in
equitable results compel the need for a review of these laws.
b. The law revision commission is hereby directed to:
(1) review and assess the economic consequences of divorce on the
parties;
(2) review the maintenance laws of the state, including the way in
which they are administered to determine the impact of these laws on
post marital economic disparities, and the effectiveness of such laws
and their administration in achieving the state's policy goals and
objectives of ensuring that the economic consequences of a divorce are
fairly and equitably shared by the divorcing couple; and
(3) make recommendations to the legislature, including such proposed
revisions of such laws as it determines necessary to achieve these goals
and objectives.
c. The law revision commission shall make a preliminary report to the
legislature and the governor of its findings, conclusions, and any
recommendations not later than nine months from the effective date of
this subdivision, and a final report of its findings, conclusions and
recommendations not later than December thirty-first, two thousand
eleven.
7. Child support. a. In any matrimonial action, or in an independent
action for child support, the court as provided in section two hundred
forty of this chapter shall order either or both parents to pay
temporary child support or child support without requiring a showing of
immediate or emergency need. The court shall make an order for temporary
child support notwithstanding that information with respect to income
and assets of either or both parents may be unavailable. Where such
information is available, the court may make an order for temporary
child support pursuant to section two hundred forty of this article.
Such order shall, except as provided for herein, be effective as of the
date of the application therefor, and any retroactive amount of child
support due shall be support arrears/past due support and shall be paid
in one sum or periodic sums, as the court shall direct, taking into
account any amount of temporary child support which has been paid. In
addition, such retroactive child support shall be enforceable in any
manner provided by law including, but not limited to, an execution for
support enforcement pursuant to subdivision (b) of section fifty-two
hundred forty-one of the civil practice law and rules. When a child
receiving support is a public assistance recipient, or the order of
support is being enforced or is to be enforced pursuant to section one
hundred eleven-g of the social services law, the court shall establish
the amount of retroactive child support and notify the parties that such
amount shall be enforced by the support collection unit pursuant to an
execution for support enforcement as provided for in subdivision (b) of
section fifty-two hundred forty-one of the civil practice law and rules,
or in such periodic payments as would have been authorized had such an
execution been issued. In such case, the court shall not direct the
schedule of repayment of retroactive support. The court shall not
consider the misconduct of either party but shall make its award for
child support pursuant to section two hundred forty of this article.
b. Notwithstanding any other provision of law, any written application
or motion to the court for the establishment of a child support
obligation for persons not in receipt of family assistance must contain
either a request for child support enforcement services which would
authorize the collection of the support obligation by the immediate
issuance of an income execution for support enforcement as provided for
by this chapter, completed in the manner specified in section one
hundred eleven-g of the social services law; or a statement that the
applicant has applied for or is in receipt of such services; or a
statement that the applicant knows of the availability of such services,
has declined them at this time and where support enforcement services
pursuant to section one hundred eleven-g of the social services law have
been declined that the applicant understands that an income deduction
order may be issued pursuant to subdivision (c) of section five thousand
two hundred forty-two of the civil practice law and rules without other
child support enforcement services and that payment of an administrative
fee may be required. The court shall provide a copy of any such request
for child support enforcement services to the support collection unit of
the appropriate social services district any time it directs payments to
be made to such support collection unit. Additionally, the copy of any
such request shall be accompanied by the name, address and social
security number of the parties; the date and place of the parties'
marriage; the name and date of birth of the child or children; and the
name and address of the employers and income payors of the party from
whom child support is sought. Unless the party receiving child support
has applied for or is receiving such services, the court shall not
direct such payments to be made to the support collection unit, as
established in section one hundred eleven-h of the social services law.
c. The court shall direct that a copy of any child support or combined
child and spousal support order issued by the court on or after the
first day of October, nineteen hundred ninety-eight, in any proceeding
under this section be provided promptly to the state case registry
established pursuant to subdivision four-a of section one hundred
eleven-b of the social services law.
* d. Any child support order made by the court in any proceeding under
the provisions of this section shall include, on its face, a notice
printed or typewritten in a size equal to at least eight point bold type
informing the parties of their right to seek a modification of the child
support order upon a showing of:
(i) a substantial change in circumstances; or
(ii) that three years have passed since the order was entered, last
modified or adjusted; or
(iii) there has been a change in either party's gross income by
fifteen percent or more since the order was entered, last modified, or
adjusted;
however, if the parties have specifically opted out of subparagraph (ii)
or (iii) of this paragraph in a validly executed agreement or
stipulation, then that basis to seek modification does not apply.
* NB Effective October 13, 2010
8. Special relief in matrimonial actions. a. In any matrimonial
action the court may order a party to purchase, maintain or assign a
policy of insurance providing benefits for health and hospital care and
related services for either spouse or children of the marriage not to
exceed such period of time as such party shall be obligated to provide
maintenance, child support or make payments of a distributive award. The
court may also order a party to purchase, maintain or assign a policy of
accident insurance or insurance on the life of either spouse, and to
designate in the case of life insurance, either spouse or children of
the marriage, or in the case of accident insurance, the insured spouse
as irrevocable beneficiaries during a period of time fixed by the court.
The obligation to provide such insurance shall cease upon the
termination of the spouse's duty to provide maintenance, child support
or a distributive award. A copy of such order shall be served, by
registered mail, on the home office of the insurer specifying the name
and mailing address of the spouse or children, provided that failure to
so serve the insurer shall not affect the validity of the order.
b. In any action where the court has ordered temporary maintenance,
maintenance, distributive award or child support, the court may direct
that a payment be made directly to the other spouse or a third person
for real and personal property and services furnished to the other
spouse, or for the rental or mortgage amortization or interest payments,
insurances, taxes, repairs or other carrying charges on premises
occupied by the other spouse, or for both payments to the other spouse
and to such third persons. Such direction may be made notwithstanding
that the parties continue to reside in the same abode and
notwithstanding that the court refuses to grant the relief requested by
the other spouse.
c. Any order or judgment made as in this section provided may combine
any amount payable to either spouse under this section with any amount
payable to such spouse as child support or under section two hundred
forty of this chapter.
9. Enforcement and modification of orders and judgments in matrimonial
actions. a. All orders or judgments entered in matrimonial actions shall
be enforceable pursuant to section fifty-two hundred forty-one or
fifty-two hundred forty-two of the civil practice law and rules, or in
any other manner provided by law. Orders or judgments for child support,
alimony and maintenance shall also be enforceable pursuant to article
fifty-two of the civil practice law and rules upon a debtor's default as
such term is defined in paragraph seven of subdivision (a) of section
fifty-two hundred forty-one of the civil practice law and rules. The
establishment of a default shall be subject to the procedures
established for the determination of a mistake of fact for income
executions pursuant to subdivision (e) of section fifty-two hundred
forty-one of the civil practice law and rules. For the purposes of
enforcement of child support orders or combined spousal and child
support orders pursuant to section five thousand two hundred forty-one
of the civil practice law and rules, a "default" shall be deemed to
include amounts arising from retroactive support. The court may, and if
a party shall fail or refuse to pay maintenance, distributive award or
child support the court shall, upon notice and an opportunity to the
defaulting party to be heard, require the party to furnish a surety, or
the sequestering and sale of assets for the purpose of enforcing any
award for maintenance, distributive award or child support and for the
payment of reasonable and necessary attorney's fees and disbursements.
* b. Upon application by either party, the court may annul or modify
any prior order or judgment as to maintenance or child support, upon a
showing of the recipient's inability to be self-supporting or a
substantial change in circumstance or termination of child support
awarded pursuant to section two hundred forty of this article, including
financial hardship. Where, after the effective date of this part, a
separation agreement remains in force no modification of a prior order
or judgment incorporating the terms of said agreement shall be made as
to maintenance without a showing of extreme hardship on either party, in
which event the judgment or order as modified shall supersede the terms
of the prior agreement and judgment for such period of time and under
such circumstances as the court determines. Provided, however, that no
modification or annulment shall reduce or annul any arrears of child
support which have accrued prior to the date of application to annul or
modify any prior order or judgment as to child support. The court shall
not reduce or annul any arrears of maintenance which have been reduced
to final judgment pursuant to section two hundred forty-four of this
chapter. No other arrears of maintenance which have accrued prior to the
making of such application shall be subject to modification or annulment
unless the defaulting party shows good cause for failure to make
application for relief from the judgment or order directing such payment
prior to the accrual of such arrears and the facts and circumstances
constituting good cause are set forth in a written memorandum of
decision. Such modification may increase maintenance or child support
nunc pro tunc as of the date of application based on newly discovered
evidence. Any retroactive amount of maintenance, or child support due
shall, except as provided for herein, be paid in one sum or periodic
sums, as the court directs, taking into account any temporary or partial
payments which have been made. Any retroactive amount of child support
due shall be support arrears/past due support. In addition, such
retroactive child support shall be enforceable in any manner provided by
law including, but not limited to, an execution for support enforcement
pursuant to subdivision (b) of section fifty-two hundred forty-one of
the civil practice law and rules. When a child receiving support is a
public assistance recipient, or the order of support is being enforced
or is to be enforced pursuant to section one hundred eleven-g of the
social services law, the court shall establish the amount of retroactive
child support and notify the parties that such amount shall be enforced
by the support collection unit pursuant to an execution for support
enforcement as provided for in subdivision (b) of section fifty-two
hundred forty-one of the civil practice law and rules, or in such
periodic payments as would have been authorized had such an execution
been issued. In such case, the court shall not direct the schedule of
repayment of retroactive support. The provisions of this subdivision
shall not apply to a separation agreement made prior to the effective
date of this part.
* NB Effective until October 13, 2010
* b. (1) Upon application by either party, the court may annul or
modify any prior order or judgment as to maintenance, upon a showing of
the recipient's inability to be self-supporting or a substantial change
in circumstance or termination of child support awarded pursuant to
section two hundred forty of this article, including financial hardship.
Where, after the effective date of this part, a separation agreement
remains in force no modification of a prior order or judgment
incorporating the terms of said agreement shall be made as to
maintenance without a showing of extreme hardship on either party, in
which event the judgment or order as modified shall supersede the terms
of the prior agreement and judgment for such period of time and under
such circumstances as the court determines. The court shall not reduce
or annul any arrears of maintenance which have been reduced to final
judgment pursuant to section two hundred forty-four of this article. No
other arrears of maintenance which have accrued prior to the making of
such application shall be subject to modification or annulment unless
the defaulting party shows good cause for failure to make application
for relief from the judgment or order directing such payment prior to
the accrual of such arrears and the facts and circumstances constituting
good cause are set forth in a written memorandum of decision. Such
modification may increase maintenance nunc pro tunc as of the date of
application based on newly discovered evidence. Any retroactive amount
of maintenance due shall, except as provided for herein, be paid in one
sum or periodic sums, as the court directs, taking into account any
temporary or partial payments which have been made. The provisions of
this subdivision shall not apply to a separation agreement made prior to
the effective date of this part.
(2) (i) The court may modify an order of child support, including an
order incorporating without merging an agreement or stipulation of the
parties, upon a showing of a substantial change in circumstances.
Incarceration shall not be a bar to finding a substantial change in
circumstances provided such incarceration is not the result of
non-payment of a child support order, or an offense against the
custodial parent or child who is the subject of the order or judgment.
(ii) In addition, unless the parties have specifically opted out of
the following provisions in a validly executed agreement or stipulation
entered into between the parties, the court may modify an order of child
support where:
(A) three years have passed since the order was entered, last modified
or adjusted; or
(B) there has been a change in either party's gross income by fifteen
percent or more since the order was entered, last modified, or adjusted.
A reduction in income shall not be considered as a ground for
modification unless it was involuntary and the party has made diligent
attempts to secure employment commensurate with his or her education,
ability, and experience.
(iii) No modification or annulment shall reduce or annul any arrears
of child support which have accrued prior to the date of application to
annul or modify any prior order or judgment as to child support. Such
modification may increase child support nunc pro tunc as of the date of
application based on newly discovered evidence. Any retroactive amount
of child support due shall, except as provided for in this subparagraph,
be paid in one sum or periodic sums, as the court directs, taking into
account any temporary or partial payments which have been made. Any
retroactive amount of child support due shall be support arrears/past
due support. In addition, such retroactive child support shall be
enforceable in any manner provided by law including, but not limited to,
an execution for support enforcement pursuant to subdivision (b) of
section fifty-two hundred forty-one of the civil practice law and rules.
When a child receiving support is a public assistance recipient, or the
order of support is being enforced or is to be enforced pursuant to
section one hundred eleven-g of the social services law, the court shall
establish the amount of retroactive child support and notify the parties
that such amount shall be enforced by the support collection unit
pursuant to an immediate execution for support enforcement as provided
for by this chapter, or in such periodic payments as would have been
authorized had such an execution been issued. In such case, the court
shall not direct the schedule of repayment of retroactive support.
* NB Effective October 13, 2010
c. Notwithstanding any other provision of law, any written application
or motion to the court for the modification or enforcement of a child
support or combined maintenance and child support order for persons not
in receipt of family assistance must contain either a request for child
support enforcement services which would authorize the collection of the
support obligation by the immediate issuance of an income execution for
support enforcement as provided for by this chapter, completed in the
manner specified in section one hundred eleven-g of the social services
law; or a statement that the applicant has applied for or is in receipt
of such services; or a statement that the applicant knows of the
availability of such services, has declined them at this time and where
support enforcement services pursuant to section one hundred eleven-g of
the social services law have been declined that the applicant
understands that an income deduction order may be issued pursuant to
subdivision (c) of section five thousand two hundred forty-two of the
civil practice law and rules without other child support enforcement
services and that payment of an administrative fee may be required. The
court shall provide a copy of any such request for child support
enforcement services to the support collection unit of the appropriate
social services district any time it directs payments to be made to such
support collection unit. Additionally, the copy of such request shall be
accompanied by the name, address and social security number of the
parties; the date and place of the parties' marriage; the name and date
of birth of the child or children; and the name and address of the
employers and income payors of the party ordered to pay child support to
the other party. Unless the party receiving child support or combined
maintenance and child support has applied for or is receiving such
services, the court shall not direct such payments to be made to the
support collection unit, as established in section one hundred eleven-h
of the social services law.
d. The court shall direct that a copy of any child support or combined
child and spousal support order issued by the court on or after the
first day of October, nineteen hundred ninety-eight, in any proceeding
under this section be provided promptly to the state case registry
established pursuant to subdivision four-a of section one hundred
eleven-b of the social services law.
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