N.Y. Family Court Act § 412: Married person's duty to support spouse

§ 412. Married person's duty to support spouse. 1. A married person is

chargeable with the support of his or her spouse and, except where the

parties have entered into an agreement pursuant to section four hundred

twenty-five of this article providing for support, the court, upon

application by a party, shall make its award for spousal support

pursuant to the provisions of this part.

2. For purposes of this section, the following definitions shall be

used:

(a) "payor" shall mean the spouse with the higher income.

(b) "payee" shall mean the spouse with the lower income.

(c) "income" shall mean income as defined in the child support

standards act and codified in section two hundred forty of the domestic

relations law and section four hundred thirteen of this article without

subtracting spousal support 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 the domestic relations law and subclause

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

one of section four hundred thirteen of this article.

(d) "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.

(e) "guideline amount of spousal support" shall mean the sum derived

by the application of subdivision three or four of this section.

(f) "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 the domestic relations law and section four hundred

thirteen of this article.

(g) "agreement" shall have the same meaning as provided in subdivision

three of part B of section two hundred thirty-six of the domestic

relations law.

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

the court shall determine the guideline amount of spousal support as

follows:

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

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

parent pursuant to the child support standards act:

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

from twenty percent of the payor's income.

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

the payee's income by forty percent.

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

derived from subparagraph two of this paragraph.

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

subparagraphs one and three of this paragraph.

(5) the guideline amount of spousal support shall be the amount

determined by subparagraph four of this paragraph except that, if the

amount determined by subparagraph four of this paragraph is less than or

equal to zero, the guideline amount of spousal support shall be zero

dollars.

(6) spousal support shall be calculated prior to child support because

the amount of spousal support 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.

(b) 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 section is the custodial parent pursuant to the

child support standards act:

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

thirty percent of the payor's income.

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

the payee's income by forty percent.

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

derived from subparagraph two of this paragraph.

(4) the court shall determine the lower of amounts derived by

subparagraphs one and three of this paragraph.

(5) the guideline amount of spousal support shall be the amount

determined by subparagraph four of this paragraph except that, if the

amount determined by subparagraph four of this paragraph is less than or

equal to zero, the guideline amount of spousal support shall be zero

dollars.

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

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

child support standards act, spousal support shall be calculated prior

to child support because the amount of spousal support 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.

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

determine the guideline amount of spousal support as follows:

(a) the court shall perform the calculations set forth in subdivision

three of this section for the income of the payor up to and including

the income cap; and

(b) for income exceeding the cap, the amount of additional spousal

support 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 paragraph (a) of subdivision six of this section; and

(c) 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.

5. Notwithstanding the provisions of this section, where the guideline

amount of spousal support would reduce the payor's income below the

self-support reserve for a single person, the guideline amount of

spousal support 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

spousal support is awarded.

6. (a) The court shall order the guideline amount of spousal support

up to the cap in accordance with subdivision three of this section,

unless the court finds that the guideline amount of spousal support 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 spousal support accordingly based upon consideration of the

following factors:

(1) the age and health of the parties;

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

history of limited participation in the workforce;

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

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

the spousal support award when the calculation of spousal support was

based upon child support being awarded which resulted in a spousal

support award lower than it would have been had child support not been

awarded;

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

or encumbrances made in contemplation of a support proceeding without

fair consideration;

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

pre-support proceedings 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 availability and cost of medical insurance for the parties;

(9) 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;

(10) the tax consequences to each party;

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

marriage;

(12) 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;

(13) 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;

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

and proper.

(b) Where the court finds that the guideline amount of spousal support

is unjust or inappropriate and the court adjusts the guideline amount of

spousal support pursuant to this subdivision, the court shall set forth,

in a written decision or on the record, the guideline amount of spousal

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

adjusted the guideline amount of spousal support. Such decision, whether

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

counsel.

(c) Where either or both parties are unrepresented, the court shall

not enter a spousal support order unless the court informs the

unrepresented party or parties of the guideline amount of spousal

support.

7. When a party 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 spousal support award based

upon the needs of the payee or the standard of living of the parties

prior to commencement of the spousal support proceeding, 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.

8. In any action or proceeding for modification of an order of spousal

support existing prior to the effective date of the chapter of the laws

of two thousand fifteen which amended this section, brought pursuant to

this article, the spousal support guidelines set forth in this section

shall not constitute a change of circumstances warranting modification

of such spousal support order.

9. In any action or proceeding for modification where spousal support

or maintenance was established in a written agreement providing for

spousal support made pursuant to section four hundred twenty-five of

this article or made pursuant to subdivision three of part B of section

two hundred thirty-six of the domestic relations law entered into prior

to the effective date of the chapter of the laws of two thousand fifteen

which amended this section, brought pursuant to this article, the

spousal support guidelines set forth in this section shall not

constitute a change of circumstances warranting modification of such

spousal support order.

10. The court may modify an order of spousal support upon a showing of

a substantial change in circumstances. Unless so modified, any order for

spousal support issued pursuant to this section shall continue until the

earliest to occur of the following:

(a) a written stipulation or agreement between the parties;

(b) an oral stipulation or agreement between the parties entered into

on the record in open court;

(c) issuance of a judgment of divorce or other order in a matrimonial

proceeding;

(d) the death of either party.