N.Y. Domestic Relations Law § 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 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 payee'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.

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 take effect and be binding upon the plaintiff in a

matrimonial action immediately upon the filing of the summons, or

summons and complaint, and shall be binding upon the defendant

immediately upon the service of the automatic orders with the summons.

Each automatic order shall remain in full force and effect until the

judgment of divorce is entered or the action is dismissed, discontinued

or stayed, whichever shall occur first, unless the order is 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.

(6) If either party receives notice of a tax lien, foreclosure,

bankruptcy, or litigation, or the filing of same, or of the lifting of a

stay in bankruptcy, that could adversely affect the marital estate, that

party shall, within ten days after receiving such notice, send written

notice of such event to the other party.

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. The

court shall not consider as marital property subject to distribution the

value of a spouse's enhanced earning capacity arising from a license,

degree, celebrity goodwill, or career enhancement. However, in arriving

at an equitable division of marital property, the court shall consider

the direct or indirect contributions to the development during the

marriage of the enhanced earning capacity of the other spouse;

(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) whether either party has committed an act or acts of domestic

violence, as described in subdivision one of section four hundred

fifty-nine-a of the social services law, against the other party and the

nature, extent, duration and impact of such act or acts;

(15) in awarding the possession of a companion animal, the court shall

consider the best interest of such animal. "Companion animal", as used

in this subparagraph, shall have the same meaning as in subdivision five

of section three hundred fifty of the agriculture and markets law; and

(16) 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 providing for maintenance pursuant to

subdivision three of this part, in any matrimonial action the court,

upon application by a party, 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 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 without

subtracting alimony or maintenance actually paid or to be paid to a

spouse that is a party to the instant action pursuant to subclause (C)

of clause (vii) of subparagraph five of paragraph (b) of subdivision

one-b of section two hundred forty of this article and subclause (C) of

clause (vii) of subparagraph five of paragraph (b) of subdivision one of

section four hundred thirteen of the family court act and without

subtracting spousal support paid pursuant to section four hundred twelve

of such act.

(5) "Income cap" shall mean up to and including one hundred

eighty-four thousand dollars of the payor's annual income; provided,

however, beginning March first, two thousand twenty and every two years

thereafter, the income cap amount shall increase by the sum 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 prior two years multiplied by

the then income cap and then 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 dollar

amount derived by the application of paragraph c or d of this

subdivision.

(7) "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.

(8) "Agreement" shall have the same meaning as provided in subdivision

three of this part.

c. Where the payor's income is lower than or equal to the income cap,

the court shall determine the guideline amount of temporary maintenance

as follows:

(1) Where child support will be paid for children of the marriage and

where the payor as defined in this subdivision is also the non-custodial

parent pursuant to the child support standards act:

(a) the court shall subtract twenty-five percent of the payee's income

from twenty percent of the payor's income.

(b) the court shall then multiply the sum of the payor's income and

the payee's income by forty percent.

(c) the court shall subtract the payee's income from the amount

derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by

clauses (a) and (c) of this subparagraph.

(e) the guideline amount of temporary maintenance shall be the amount

determined by clause (d) of this subparagraph except that, if the amount

determined by clause (d) of this subparagraph is less than or equal to

zero, the guideline amount of temporary maintenance shall be zero

dollars.

(f) temporary maintenance shall be calculated prior to child support

because the amount of temporary maintenance shall be subtracted from the

payor's income and added to the payee's income as part of the

calculation of the child support obligation.

(2) Where child support will not be paid for children of the marriage,

or where child support will be paid for children of the marriage but the

payor as defined in this subdivision is the custodial parent pursuant to

the child support standards act:

(a) the court shall subtract twenty percent of the payee's income from

thirty percent of the payor's income.

(b) the court shall then multiply the sum of the payor's income and

the payee's income by forty percent.

(c) the court shall subtract the payee's income from the amount

derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by

clauses (a) and (c) of this subparagraph.

(e) the guideline amount of temporary maintenance shall be the amount

determined by clause (d) of this subparagraph except that, if the amount

determined by clause (d) of this subparagraph is less than or equal to

zero, the guideline amount of temporary maintenance shall be zero

dollars.

(f) if child support will be paid for children of the marriage but the

payor as defined in this subdivision is the custodial parent pursuant to

the child support standards act, temporary maintenance shall be

calculated prior to child support because the amount of temporary

maintenance shall be subtracted from the payor's income pursuant to this

subdivision and added to the payee's income pursuant to this subdivision

as part of the calculation of the child support obligation.

d. Where the payor's income exceeds the income cap, the court shall

determine the guideline amount of temporary maintenance as follows:

(1) the court shall perform the calculations set forth in paragraph c

of this subdivision for the income of the payor up to and including the

income cap; and

(2) for income exceeding the cap, the amount of additional maintenance

awarded, if any, shall be within the discretion of the court which shall

take into consideration any one or more of the factors set forth in

subparagraph one of paragraph h of this subdivision; and

(3) the court shall set forth the factors it considered and the

reasons for its decision in writing or on the record. Such decision,

whether in writing or on the record, may not be waived by either party

or counsel.

e. Notwithstanding the provisions of this subdivision, where the

guideline amount of temporary maintenance would reduce the payor's

income below the self-support reserve for a single person, 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 shall be a rebuttable presumption

that no temporary maintenance is awarded.

f. The court shall determine the duration of temporary maintenance by

considering the length of the marriage.

g. Temporary maintenance shall terminate no later than the issuance of

the judgment of divorce or the death of either party, whichever occurs

first.

h. (1) The court shall order the guideline amount of temporary

maintenance up to the income cap in accordance with paragraph c of this

subdivision, unless the court finds that the guideline amount of

temporary maintenance is unjust or inappropriate, which finding shall be

based upon consideration of any one or more of the following factors,

and adjusts the guideline amount of temporary maintenance accordingly

based upon such consideration:

(a) the age and health of the parties;

(b) the present or future earning capacity of the parties, including a

history of limited participation in the workforce;

(c) the need of one party to incur education or training expenses;

(d) the termination of a child support award during the pendency of

the temporary maintenance award when the calculation of temporary

maintenance was based upon child support being awarded and which

resulted in a maintenance award lower than it would have been had child

support not been awarded;

(e) the wasteful dissipation of marital property, including transfers

or encumbrances made in contemplation of a matrimonial action without

fair consideration;

(f) the existence and duration of a pre-marital joint household or a

pre-divorce separate household;

(g) 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;

(h) the availability and cost of medical insurance for the parties;

(i) the care of children or stepchildren, disabled adult children or

stepchildren, elderly parents or in-laws provided during the marriage

that inhibits a party's earning capacity;

(j) the tax consequences to each party;

(k) the standard of living of the parties established during the

marriage;

(l) the reduced or lost earning capacity of the payee as a result of

having forgone or delayed education, training, employment or career

opportunities during the marriage; and

(m) any other factor which the court shall expressly find to be just

and proper.

(2) Where the court finds that the guideline amount of temporary

maintenance is unjust or inappropriate and the court adjusts the

guideline amount of temporary maintenance pursuant to this paragraph,

the court shall set forth, in a written decision or on the record, the

guideline amount of temporary maintenance, the factors it considered,

and the reasons that the court adjusted the guideline amount of

temporary maintenance. Such decision, whether in writing or on the

record, 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 court informs the

unrepresented party or parties of the guideline amount of temporary

maintenance.

i. Nothing contained in this subdivision shall be construed to alter

the rights of the parties to voluntarily enter into agreements or

stipulations as defined in subdivision three of this part which deviate

from the presumptive award of temporary maintenance.

j. When a payor has defaulted and/or the court is otherwise presented

with insufficient evidence to determine 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 evidence.

k. 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.

l. In any action or proceeding for modification where the parties have

entered into an agreement providing for maintenance pursuant to

subdivision three of this part entered into 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.

m. In determining temporary maintenance, the court shall consider and

allocate, where appropriate, the responsibilities of the respective

spouses for the family's expenses during the pendency of the proceeding.

n. The temporary maintenance order shall not prejudice the rights of

either party regarding a post-divorce maintenance award.

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, upon

application by a party, shall make its award for post-divorce

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) "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, without subtracting alimony or

maintenance actually paid or to be paid to a spouse that is a party to

the instant action pursuant to subclause (C) of clause (vii) of

subparagraph five of paragraph (b) of subdivision one-b of section two

hundred forty of this article and subclause (C) of clause (vii) of

subparagraph five of paragraph (b) of subdivision one of section four

hundred thirteen of the family court act and without subtracting spousal

support paid pursuant to section four hundred twelve of such act; and

(b) income from income-producing property distributed or to be

distributed pursuant to subdivision five of this part.

(4) "Income cap" shall mean up to and including one hundred

eighty-four thousand dollars of the payor's annual income; provided,

however, beginning March first, two thousand twenty and every two years

thereafter, the income cap amount shall increase by the sum 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 prior two years multiplied by

the then income cap and then rounded to the nearest one thousand

dollars. The office of court administration shall determine and publish

the income cap.

(5) "Guideline amount of post-divorce maintenance" shall mean the

dollar amount derived by the application of paragraph c or d of this

subdivision.

(6) "Guideline duration of post-divorce maintenance" shall mean the

durational period determined by the application of paragraph f of this

subdivision.

(7) "Post-divorce maintenance guideline obligation" shall mean the

guideline amount of post-divorce maintenance and the guideline duration

of post-divorce maintenance.

(8) "Length of marriage" shall mean the period from the date of

marriage until the date of commencement of the action.

(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.

(10) "Agreement" shall have the same meaning as provided in

subdivision three of this part.

c. Where the payor's income is lower than or equal to the income cap,

the court shall determine the guideline amount of post-divorce

maintenance as follows:

(1) Where child support will be paid for children of the marriage and

where the payor as defined in this subdivision is also the non-custodial

parent pursuant to the child support standards act:

(a) the court shall subtract twenty-five percent of the payee's income

from twenty percent of the payor's income.

(b) the court shall then multiply the sum of the payor's income and

the payee's income by forty percent.

(c) the court shall subtract the payee's income from the amount

derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by

clauses (a) and (c) of this subparagraph.

(e) the guideline amount of post-divorce maintenance shall be the

amount determined by clause (d) of this subparagraph except that, if the

amount determined by clause (d) of this subparagraph is less than or

equal to zero, the guideline amount of post-divorce maintenance shall be

zero dollars.

(f) notwithstanding the provisions of this subdivision, where the

guideline amount of post-divorce maintenance would reduce the payor's

income below the self-support reserve for a single person, the guideline

amount of post-divorce 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 shall be a rebuttable presumption

that no post-divorce maintenance is awarded.

(g) maintenance shall be calculated prior to child support because the

amount of maintenance shall be subtracted from the payor's income and

added to the payee's income as part of the calculation of the child

support obligation.

(2) Where child support will not be paid for children of the marriage,

or where child support will be paid for children of the marriage but the

payor as defined in this subdivision is the custodial parent pursuant to

the child support standards act:

(a) the court shall subtract twenty percent of the payee's income from

thirty percent of the payor's income.

(b) the court shall then multiply the sum of the payor's income and

the payee's income by forty percent.

(c) the court shall subtract the payee's income from the amount

derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by

clauses (a) and (c) of this subparagraph.

(e) the guideline amount of post-divorce maintenance shall be the

amount determined by clause (d) of this subparagraph except that, if the

amount determined by clause (d) of this subparagraph is less than or

equal to zero, the guideline amount of post-divorce maintenance shall be

zero dollars.

(f) if child support will be paid for children of the marriage but the

payor as defined in this subdivision is the custodial parent pursuant to

the child support standards act, post-divorce maintenance shall be

calculated prior to child support because the amount of post-divorce

maintenance shall be subtracted from the payor's income pursuant to this

subdivision and added to the payee's income pursuant to this subdivision

as part of the calculation of the child support obligation.

(g) notwithstanding the provisions of this subdivision, where the

guideline amount of post-divorce maintenance would reduce the payor's

income below the self-support reserve for a single person, the guideline

amount of post-divorce 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 shall be a rebuttable presumption

that no post-divorce maintenance is awarded.

d. Where the payor's income exceeds the income cap, the court shall

determine the guideline amount of post-divorce maintenance as follows:

(1) the court shall perform the calculations set forth in paragraph c

of this subdivision for the income of payor up to and including the

income cap; and

(2) for income exceeding the cap, the amount of additional maintenance

awarded, if any, shall be within the discretion of the court which shall

take into consideration any one or more of the factors set forth in

subparagraph one of paragraph e of this subdivision; and

(3) the court shall set forth the factors it considered and the

reasons for its decision in writing or on the record. Such decision,

whether in writing or on the record, may not be waived by either party

or counsel.

e. (1) The court shall order the post-divorce maintenance guideline

obligation up to the income cap in accordance with paragraph c of this

subdivision, unless the court finds that the post-divorce maintenance

guideline obligation is unjust or inappropriate, which finding shall be

based upon consideration of any one or more of the following factors,

and adjusts the post-divorce maintenance guideline obligation

accordingly based upon such consideration:

(a) the age and health of the parties;

(b) the present or future earning capacity of the parties, including a

history of limited participation in the workforce;

(c) the need of one party to incur education or training expenses;

(d) the termination of a child support award before the termination of

the maintenance award when the calculation of maintenance was based upon

child support being awarded which resulted in a maintenance award lower

than it would have been had child support not been awarded;

(e) the wasteful dissipation of marital property, including transfers

or encumbrances made in contemplation of a matrimonial action without

fair consideration;

(f) the existence and duration of a pre-marital joint household or a

pre-divorce separate household;

(g) 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;

(h) the availability and cost of medical insurance for the parties;

(i) the care of children or stepchildren, disabled adult children or

stepchildren, elderly parents or in-laws provided during the marriage

that inhibits a party's earning capacity;

(j) the tax consequences to each party;

(k) the standard of living of the parties established during the

marriage;

(l) the reduced or lost earning capacity of the payee as a result of

having forgone or delayed education, training, employment or career

opportunities during the marriage;

(m) the equitable distribution of marital property and the income or

imputed income on the assets so distributed;

(n) the contributions and services of the payee as a spouse, parent,

wage earner and homemaker and to the career or career potential of the

other party; and

(o) any other factor which the court shall expressly find to be just

and proper.

(2) Where the court finds that the post-divorce maintenance guideline

obligation is unjust or inappropriate and the court adjusts the

post-divorce maintenance guideline obligation pursuant to this

paragraph, the court shall set forth, in a written decision or on the

record, the unadjusted post-divorce maintenance guideline obligation,

the factors it considered, and the reasons that the court adjusted the

post-divorce maintenance obligation. Such decision shall not be waived

by either party or counsel.

f. The duration of post-divorce maintenance may be determined as

follows:

(1) The court may determine the duration of post-divorce maintenance

in accordance with the following advisory schedule:

Length of the marriage Percent of the length of the

marriage for which

maintenance will be payable

0 up to and including 15 years 15% - 30%

More than 15 up to and including 30% - 40%

20 years

More than 20 years 35% - 50%

(2) In determining the duration of post-divorce maintenance, whether

or not the court utilizes the advisory schedule, it shall consider the

factors listed in subparagraph one of paragraph e of this subdivision

and shall set forth, in a written decision or on the record, the factors

it considered. Such decision shall not be waived by either party or

counsel. Nothing herein shall prevent the court from awarding

non-durational maintenance in an appropriate case.

(3) Notwithstanding the provisions of subparagraph one of this

paragraph, post-divorce maintenance shall terminate upon the death of

either party or upon the payee'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 article.

(4) Notwithstanding the provisions of subparagraph one of this

paragraph, when determining duration of post-divorce maintenance, the

court shall take into consideration anticipated retirement assets,

benefits, and retirement eligibility age of both parties if

ascertainable at the time of decision. If not ascertainable at the time

of decision, the actual full or partial retirement of the payor with

substantial diminution of income shall be a basis for a modification of

the award.

g. Where either or both parties are unrepresented, the court shall not

enter a maintenance order or judgment unless the court informs the

unrepresented party or parties of the post-divorce maintenance guideline

obligation.

h. 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 post-divorce

maintenance guideline obligation.

i. When a payor has defaulted and/or the court makes a finding at the

time of trial that it was presented with insufficient evidence to

determine income, the court shall order the post-divorce maintenance

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 substantial newly

discovered evidence.

j. Post-divorce maintenance may be modified pursuant to paragraph b of

subdivision nine of this part.

k. In any action or proceeding for modification of an order of

maintenance or alimony existing prior to the effective date of the

chapter of the laws of two thousand fifteen which amended this

subdivision, brought pursuant to this article, the guidelines for

post-divorce maintenance set forth in this subdivision shall not

constitute a change of circumstances warranting modification of such

support order.

l. In any action or proceeding for modification where the parties have

entered into an agreement providing for maintenance pursuant to

subdivision three of this part entered into prior to the effective date

of the chapter of the laws of two thousand fifteen which amended this

subdivision, brought pursuant to this article, the guidelines for

post-divorce maintenance set forth in this subdivision shall not

constitute a change of circumstances warranting modification of such

agreement.

m. In any action or proceeding for modification of an order of

maintenance or alimony existing prior to the effective date of the

chapter of the laws of two thousand fifteen which amended this

subdivision, brought pursuant to this article, the guidelines for

post-divorce maintenance set forth in paragraphs c, d and e of this

subdivision shall not apply.

n. In any action or proceeding for modification where the parties have

entered into an agreement providing for maintenance pursuant to

subdivision three of this part entered into prior to the effective date

of the chapter of the laws of two thousand fifteen which amended this

subdivision, brought pursuant to this article, the guidelines for

post-divorce maintenance set forth in paragraphs c, d and e of this

subdivision shall not apply.

o. 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 e of this subdivision.

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.

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. (1) Upon application by either party, the court may annul or modify

any prior order or judgment made after trial as to maintenance, upon a

showing of the payee's inability to be self-supporting or upon a showing

of a substantial change in circumstance, including financial hardship or

upon actual full or partial retirement of the payor if the retirement

results in a substantial change in financial circumstances. Where, after

the effective date of this part, an agreement remains in force, no

modification of an 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 considered voluntary unemployment and shall

not be a bar to finding a substantial change in circumstances.

(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.

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.