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Monday, November 7, 2011

Proposed Upcoming Changes to Divorce Law in New York

The New York City Bar Association, in collaboration with several committees, recently released a report reviewing many aspects of Family Law and Matrimonial Law in New York State.  You can find the full report here:

Here are some important highlights that are of note:

Current law already creates myriad interconnections between Supreme Court and Family Court, and between spousal support and maintenance. A Family Court award of spousal support is valid until a divorce decree is entered. In a matrimonial action, a court may choose to leave a Family Court support order untouched, or it may preempt the existing order by issuing an award of temporary maintenance.

Family Court is a court of limited jurisdiction and may exercise only those powers specifically granted to it by the state constitution or by statute. The state constitution grants the Family Court exclusive original jurisdiction over “the support of dependents except for support incidental to actions and proceedings in this state for marital separation, divorce, annulment of marriage or dissolution of marriage.”

Although a Family Court order for spousal support may be valid until the completion of a divorce action, a Supreme Court temporary maintenance award preempts any pre-existing spousal support order.

The courts developed the concept of enhanced earning capacity as an asset to be divided in equitable distribution. See O’Brien v. O’Brien, 66 N.Y.2d 576 (1985); Elkus v. Elkus, 169 A.D. 134 (1st Dept. 1991) and their progeny. As the Court of Appeals noted, “marital property” as defined by the DRL has been found “to include a wide range of intangible interests which in other contexts might not be recognized as divisible property at all.” DeJesus v. DeJesus, 90 N.Y.2d 643, 647 (1997).

Similar to where we stood before passage of no-fault divorce, New York now finds that it is one of the last states to use the concept of Enhanced Earning Capacity as an asset. And, to further complicate matters, the concept of Enhanced Earning Capacity as an asset is not recognized by the bankruptcy courts, which creates potential conflicts for New York State residents.

Additionally, summaries were provided of these committees comments to several laws currently in place: 

(1) The temporary maintenance guidelines require consideration of “the existence and duration of a pre-marital joint household”. Some members of the group believe that this is an important addition to the law and recognizes modern-day reality. Proponents also stress that this provision is important to protect the lesser-monied spouse, particularly in those cases where the withholding of marriage is used as a means of control. However, other members of the group are concerned that this can be interpreted as fundamentally altering when the obligations of marriage begin and that it will lead to litigation in the many cases where people live together before getting married, in essence, recognizing the equivalent of a common law marriage. Further, in light of the passage of the Marriage Equality Law, the existence of pre-marriage living arrangements among same-sex couples who were unable to marry in New York takes on new significance in this context.

(2) The temporary maintenance guidelines require consideration of “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”. Proponents of this provision believe that it enables the court to consider the unpaid efforts of primary caretakers, whose responsibilities may inhibit their ability to earn income in the workforce and who may lack the resources required to hire outside help. However, other members of the group are concerned that this provision could be read to require a judge to consider the post-divorce arrangements for care of someone other than a minor child. In their view, this would greatly expand post-divorce familial responsibilities to over-age children and elderly parents in a way that is not supported by case law. Some recommended modifying the provision so that it is clearly applicable only to care provided during the course of the marriage.

(3) The temporary maintenance guidelines require consideration of “the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment”. Proponents of this provision believe that, because educational expenses are discretionary and not often ordered as part of a divorce settlement or judgment for low to middle income families, this provision enables the court to consider the contributions to education made by the primary caretaker when calculating maintenance. Opponents believe it is duplicative of considerations already in place under the CSSA and, should such a provision remain, it should be amended to provide that when these expenses are no longer necessary, maintenance shall be recalculated. Further, we recommend that the calculation of temporary maintenance be made before child support is calculated and that temporary maintenance be included as part of the payee’s income.

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