Home » Publications & Outlines » Kathleen Donelli, White Plains Divorce Lawyer, New Matrimonial Legislation - 3-23-11

New Matrimonial Legislation

2011 Matrimonial Seminar

New York State Judicial Institute

White Plains, New York







No Fault Divorce, Temporary Maintenance Guidelines, Counsel & Expert Fees and Modification of Child Support 


March 23, 2011

2:15 p.m. - 3:30 p.m.




Presented by:  Hon. Ellen Gesmer

                                                            Kathleen Donelli, Esq.

                                                            Patrick C. O'Reilly, Esq.










During this interactive session a panel of practitioners and judges will elicit the experience of the audience in handling cases involving the new matrimonial legislation.

I.          "No Fault" Divorce applies to divorce actions commenced on or after October 12, 2010


Section 1. Section 170 of the domestic relations law is amended by adding a new subdivision 7 to read as follows:




            Questions and Relevant Case Law on No Fault Divorce


1.   Can "irretrievable breakdown" be plead in divorce actions commenced before October 12, 2011?


Heinz v. Heinz, 2/25/11 N.Y.L.J. 25 (col. 2) (Nassau Co. J. Palmieri) - Husband may commence a no fault divorce action while Wife's divorce action is pending.  On October 1, 2011, Wife filed for divorce asserting cruel and inhuman treatment and constructive abandonment.  On October 24, 2011, Husband commenced his divorce action asserting irretrievable breakdown of the marriage.  Wife sought dismissal of the Husband's action, arguing that since her action was commenced before the October 12, 2010 no-fault effective date, the new statute could not apply.  Judge Palmieri denied the Wife's motion to dismiss Husband's "no-fault" divorce claim, relying upon Motler v. Motler, 60 N.Y.2d 244 (1983) which held that since under CPLR 3019 all counterclaims are permissive, a defendant in a divorce action could assert a claim against the other spouse either as a counterclaim or in a separate suit.  The court also noted that since the Husband was served with the Wife's summons with notice after he instituted his action, no jurisdiction over his person was acquired and no appearance in Wife's action could have occurred before the new statute came into effect.


A.C. v. D.R., 10-202115, 2011 WL 620626 (Nassau Co. J. Falanga) - On July 27, 2010, Husband commenced a divorce action on the ground of constructive abandonment by filing a summons and verified complaint and Wife was served on October 26, 2010.  On October 22, 2010, Wife commenced an action for divorce on no-fault grounds by filing a summons with notice.  Husband moved to consolidate Wife's action and Wife opposed, alleging, inter alia, that the applicable law would be different if the actions were consolidated because the recent amendments to the DRL are only applicable to actions commenced after October 12, 2010.  The court held that even though the Husband's action for divorce on ground of constructive abandonment was served after Wife's action for divorce on no-fault ground was commenced, the Husband's action was first because it was filed first.  However, the court determined that a joint trial rather than consolidation was warranted, thereby permitting the Wife to apply the new amendments to the DRL in her action since a joint trial would allow the Husband to preserve his priority in time and cause of action, while the Wife would not be denied remedies authorized under the new amendments to the DRL.  The court relied, in part, on Molter v. Molter, 60 N.Y.2d 244 (1983) which permitted the Wife to withdraw her counterclaim and commence a new action after the passage of the equitable distribution law because under CPLR §3019, counterclaims are permissive and a party may assert a claim against the plaintiff as a counterclaim or by bringing a separate suit.  The court ordered a grounds trial on April 19, 2011 in both actions.



2.   Will the irretrievable breakdown of the marriage be subject to judicial review?


Strack v. Strack, 841/10 - Essex County - Justice Robert J. Muller ruled on 2/1/11 that an "immediate trial" was required to resolve whether a 47-year marriage has "broken down irretrievably."  The court held that 170 (7) was not barred by the 5 year statute of limitations in DRL 210(a) (even though the legislature did not amend DRL 210(a) to include 170(7) as an exception to the 5 year statute of limitations) because several allegations in the complaint occurred within the last 5 years and "irretrievable breakdown" is subject to the "continuing course of conduct" set forth in McKilligan.  The court also held that the verified complaint was sufficiently specific because it contained the plaintiff's statement under oath that there had been an "irretrievable breakdown" in the marriage for six months or more.


Stroffolino v. Stroffolino, 55910/10 - Brooklyn Justice Eric I. Prus ordered a trial; appeal to Second Department was discontinued when spouse withdrew trial request.


3.         If a complaint seeks a divorce under DRL §170(7) by stating under oath that the relationship between Husband and Wife has broken down irretrievably for a period of at least six months, will counterclaims alleging "fault" under DRL §170 be dismissed as moot?


4.         Must you plead cruel and inhuman treatment in order to preserve the issue of "egregious fault" for trial?


5.         What if the marriage is less than six months old?


6.         If the party brings a new action under no-fault and moves to consolidate with the existing fault based divorce, what date governs for the purpose of ED?



II.        1.      DRL §236 Part B(5):  Temporary Maintenance Guidelines


  • sets forth a formula for determining the presumptive amount of temporary maintenance awards based on the "payor's" CSSA income (plus rental income) up to $500,000
  • Enumerates 19 Factors to be considered if income exceeds $500,000
  • Enumerates 17 Factors to be considered if the Court deviates from the presumptive amount of temporary maintenance because it is "unjust or inappropriate."


                        What is the relationship between the 1) 19 factors to be considered if income exceeds $500,000; 2) 17 factors to be considered in order to deviate from the presumptive temporary maintenance; and 3) the 20 factors (listed below) to be considered for post-divorce maintenance?


2.      DRL §236 Part B (6):  Factors For Determining Final or Post-Divorce Maintenance Awards


         In determining the amount and duration of maintenance the court shall consider (new factors in bold):


(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;


(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 continue 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 of medical insurance for the parties; and


(20)   any other factor which the court shall expressly find to be just and proper.



3.      Creates a new subdivision DRL §236 (B) (6-a) directing the New York State Law Revision Commission to study and access the economic consequences of divorce on married couples, to review the spousal maintenance laws and to submit a preliminary report by June, 2011 and a final report to the Legislature and the Governor with recommendations by December 31, 2011.


Relevant Case Law on Temporary Maintenance Guidelines and Counsel Fees


Scott  M v. Ilona M, 915 N.Y.S.2d 834, 2011 N.Y. Slip Op. 21026 (J. Sunshine) (Kings Co., 1/27/11)  Husband's presumptive pendente lite maintenance award in the amount of $37,016 was unjust and inappropriate because his available annual resources without deviation would be $39,398.77 but his Wife's would be $78,309.55.  Where Husband earned $143,677 and Wife earned $30,435, court ordered temporary maintenance in the amount of $24,667 and child support in the amount of $17,591, leaving Husband with $50,973 and Wife with $66,735 a year.  Wife awarded $5,000 attorneys fees.



Temporary Maintenance Guidelines and Counsel Fees


Margaret A. v. Shawn B., 31161/2010, 2011 WL 893015 (Westchester Co. J. Connolly) – Wife filed motion seeking pendente lite relief, including an order of child support and maintenance and $7,500 interim legal fees.  Although neither party "mentioned" the new temporary maintenance guidelines in their motion papers, the court stated that because the action was commenced after October 12, 2010, it was required to apply the new statutory mathematical formula in determining the temporary maintenance award. (DRL § 236B [5-a][c].)  When applying the statutory formula, the court is required to establish the parties' support obligation as a function of the income that is, or should have been, reflected on the party's most recently filed income tax return.  Even though the Husband was currently unemployed, the court used the parties' 2009 most recently filed income tax return to determine the Husband's income to be $248,698 ($256,909 less $8,211 for FICA) and imputed no income to the Wife who was a full-time mother of three young children and housewife.  The court determined the presumptive temporary maintenance award to be $74,609 ($248,698 x .3), which was the lesser amount of the two required calculations (the second calculation was:  $248,698 x .4 = $99,479). 


In order to calculate a child support obligation under Child Support Standards Act (CSSA), a maintenance award, which is made concurrently with a child support award, is deductible to payor spouse, but is not considered as income to the custodial parent.  Accordingly, the court awarded temporary child support by determining the Husband's income to be $174,089 (i.e., $248,698 minus $74,609 temporary maintenance) and applying 29% to the Husband's income up to $130,000 ($37,700) and 29% to income above $130,000 ($44,089 x .29 = $12,786), for a total temporary child support award in the amount of $50,486.  The court also directed that the Husband be permitted to take the tax exemptions for the three children and that each parent pay 50% of the children's reasonable add-on expenses, including preschool and extracurricular activities.


From the Wife's total temporary support award of $10,424.59 per month ($6,217.42 temporary maintenance and $4,207.17 child support), the court directed the Wife to pay the expenses for the marital residence, herself and the children, except the Husband remained responsible for maintaining medical, dental and life insurance for the Wife and the children.


The court made an award of interim counsel fees of $5,000.00 to be paid by Husband to Wife, in order to create parity in divorce litigation.  The court reasoned that the Wife was a full-time stay-at-home mother to three children under the age of six, the Husband was an unemployed corporate executive but had a masters degree in business administration from an ivy league school, the Wife had been awarded temporary monthly maintenance and child support, the parties had limited assets to pay for litigation fees, the Husband had already paid his attorneys a retainer fee of $10,000, and the case presented generally non-complex issues.



Questions on the Application of Temporary Maintenance Guidelines


1.         What effect is the statute having on settlement?  How can the court use the new statute to promote settlement, both pendente lite and overall?


2.         Are temporary maintenance payments taxable to the payee and tax deductible to the payor?


3.         Will the Court award temporary maintenance, plus temporary basic child support, plus add ons (mandatory and/or discretionary)?


4.         In addition to temporary maintenance, will the Court direct the payor and/or the payee to pay the family's living expenses, such as carrying charges for the marital residence, automobile expenses and insurance payments?


5.         If grounds have been resolved in the Preliminary Conference Order but the Complaint has never been served, can the Plaintiff discontinue as of right under CPLR §3217(a)(1) in order to commence another divorce action after the October 12, 2010 effective date for "temporary maintenance" or "counsel & expert fees"?


6.         Under DRL §236(B)5-A(4) income includes:


(A)    income as defined in the CSSA; and

(B)    income from income producing property to be distributed pursuant to subdivision five of this part.


            What does DRL §236(B) 5-A(4) B mean?


7.         If the "Opt Out" Language must be included in any order awarding pendente lite maintenance which does not order the presumptive temporary maintenance award, should that language be included in the preliminary conference order (or in some other easily accessible form)?  Are there any other changes to the preliminary conference order that would make sense in view of the new statutes?


8.         Will the Court enforce a Stipulation signed by the parties and notarized involving temporary support (e.g., the parties agree to maintain the financial status quo) if it does not contain "opt out" language?


9.         How can the court consider the property distributed at the time of the preliminary conference order when pendente lite maintenance will be ordered?


10.       Can the court set a time limit on pendente lite maintenance?



III.       Counsel and Expert Fees, effective October 12, 2010, creates a rebuttable presumption that counsel and expert fees shall be awarded to the less monied spouse. 



Questions on the New Attorney Fee Bill Which Amends

DRL Sections 237 (a)(b) and 238



  1. Is this having an effect on settlement?  How can the court use it to promote settlement, either pendente lite or overall?
  2. Can the court order that the attorneys' fees of the non-monied spouse be paid out of marital funds?
  3. If the application of the pendente lite maintenance statute results in the "monied spouse" having less income on a monthly basis than the "non-monied spouse," how does that affect the application of the attorneys' fees statute?
  4. Will the monied spouse have to pay for the non monied spouse’s attorney if the non-monied spouse chooses to hire counsel whose fees are not only well over the standard rate, but over the rate that the monied spouse is being charged?
  5. What if there is no “monied” spouse but one party is getting their legal fees from another source, e.g., by borrowing from his/her parents?
  6. There is no definition of monied spouse; how much more does a spouse need to earn to be considered the "monied spouse"?
  7. What if one spouse has little income but significant separate and/or marital assets?






IV.       Modification of Child Support, DRL §236 Part B (9)(b)(2)(ii), effective October 13, 2010, permits the modification of child support upon establishing a substantial change of circumstances or, in addition, after 3 years or if there has been a 15% change in the payor's or payee's income, as long as such change has been involuntary and diligent attempts for employment are demonstrated.  The parties may specifically opt out of these modification provisions in a separation agreement or stipulation.



Questions on Modification of Child Support


1.         Does the new law apply if the Separation Agreement/Stipulation of Settlement is signed before October 12, 2010 but the Divorce Judgment is signed after October 12, 2010?


2.         Does the new law apply to orders granting (or denying) a post-judgment request to modify child support set forth in a divorce judgment granted before October 13, 2010?


3.         Does the new law replace the following "Boden/Brescia" standards applicable to child support set forth in a separation agreement or stipulation?



A.     A party seeking an upward modification of an order of support contained within a separation agreement or a stipulation has the burden of demonstrating:


a.   that the agreement was not fair or equitable when it was entered into, or

b.   that there has occurred an unanticipated and unreasonable change of circumstances, or

c.   that the basic needs of the child are not being adequately met.


B.      An upward modification cannot be granted solely upon the increased needs of a child and/or the increased income of the noncustodial parent.


C.     A party seeking a downward modification of an order of support contained within a separation agreement or a stipulation has the burden of demonstrating:


a.   that the agreement was not fair or equitable when it was entered into, or

b.   that there has occurred an unanticipated and unreasonable change of circumstances, or

c.   that the party has suffered a material adverse change in his/her financial circumstances subsequent to entering into the agreement.