New Divorce Legislation:
No Fault Divorce, Maintenance Guidelines, Counsel & Expert Fees, Modification of Child Support
and Orders of Protection
October 14, 2010
Presented by the WWBA Matrimonial Committee
WWBA President: Dolores Gebhardt, Esq.
Co-Chairs of WWBA
Matrimonial Committee: Kathleen Donelli, Esq.
Lonya A. Gilbert, Esq.
Patricia Hennessey, Esq.
Generously Sponsored By:
Certified Public Accountants & Consultants
120 Bloomingdale Road
White Plains, NY 10605
6:00p.m. - 6:10 p.m. Dolores Gebhardt Introduction & Request to Hold Questions for the Panel Discussion
6:10 p.m. - 6:15 p.m. Hon. Sondra Miller No Fault Divorce
6:15 p.m. - 6:20 p.m. Kathleen Donelli Temporary & Permanent Maintenance Guidelines
6:20 p.m. - 6:25 p.m. Lonya Gilbert Counsel & Expert Fees
6:25 p.m. - 6:30 p.m. Patricia Hennessey Modification of Child Support and Extending Orders of Protection for Good Cause or Upon Consent
6:30 p.m. - 6:40 p.m. Hon. Alan D. Scheinkman Overview of the New Divorce Legislation
6:40 p.m. - 7:00 p.m. Dinner
7:00 p.m. - 8:00 p.m. Panel Discussion
Dolores Gebhardt, Esq.
McCarthy Fingar LLP
Hon. Sondra Miller
Appellate Division, Second Department (Retired) and
Chief Counsel to McCarthy Fingar LLP
Kathleen Donelli, Esq.
McCarthy Fingar LLP
Lonya Gilbert, Esq.
Hyman & Gilbert
Patricia Hennessey, Esq.
Cohen Hennessey & Bienstock P.C.
Hon. Alan D. Scheinkman
Chief Administrative Judge of the 9th Judicial District
TABLE OF CONTENTS
I. Summary and Questions on "No Fault" Divorce ................................................... 1
Verified Complaint with new no fault ground under DRL §170(7).......................... 2-6
II. Maintenance Guidelines
1) Temporary Maintenance Guidelines................................................................. 7
2) 7 Additional Factors for Determining Final or Post-Divorce Maintenance..... 7
3) Law Revision Commission: preliminary report by June, 2011and final recommendations on Post-Divorce Maintenance by December 31, 2011........ 8
Hassell-Thompson ............................................................................................... 10-17
Includes Low Income Adjustment with
of the formula to income up to $500,000 to be unjust or inappropriate ........... 21
DRL §236 Part B (5-A) ...................................................................................... 30-33
III. Counsel and Expert Fees
52 A.D.3d, 61, 858 N.Y.S.2d 667 (2d Dep't. 2008) ............................................... 38
IV. Modification of Child Support and Extending Orders of Protection
for Good Cause or Upon Consent
Economy, NYLJ, August 10, 2009 ....................................................................... 40-43
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:
(7) THE RELATIONSHIP BETWEEN HUSBAND AND WIFE HAS BROKEN DOWN IRRETRIEVABLY FOR A PERIOD OF AT LEAST SIX MONTHS, PROVIDED THAT ONE PARTY HAS SO STATED UNDER OATH. NO JUDGMENT OF DIVORCE SHALL BE GRANTED UNDER THIS SUBDIVISION UNLESS AND UNTIL THE ECONOMIC ISSUES OF EQUITABLE DISTRIBUTION OF MARITAL PROPERTY, THE PAYMENT OR WAIVER OF SPOUSAL SUPPORT, THE PAYMENT OF CHILD SUPPORT, THE PAYMENT OF COUNSEL AND EXPERTS' FEES AND EXPENSES AS WELL AS THE CUSTODY AND VISITATION WITH THE INFANT CHILDREN OF THE MARRIAGE HAVE BEEN RESOLVED BY THE PARTIES, OR DETERMINED BY THE COURT AND INCORPORATED INTO THE JUDGMENT OF DIVORCE.
Questions on No Fault Divorce
1. 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?
2. What should be included in an Answer to a Complaint alleging irretrievable breakdown of the marriage?
3. Must you plead cruel and inhuman treatment in order to preserve the issue of "egregious fault" for trial?
4. Will the irretrievable breakdown of the marriage be subject to judicial review?
II. MAINTENANCE GUIDELINES [A.10984-b (Paulin)/S.8390 (Hassell-Thompson)]: This law applies to all matrimonial actions commenced on or after October 12, 2010
1) DRL §236 Part B(5): Temporary Maintenance Guidelines
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 contribute 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.
Questions on the Application of Temporary Maintenance Guidelines
1. Are temporary maintenance payments taxable to the payee and tax deductible to the payor?
2. Will the Court award temporary maintenance, plus temporary basic child support, plus add ons (mandatory and/or discretionary)?
3. In addition to temporary maintenance, will the Court direct the payor to pay the family's living expenses, such as carrying charges for the marital residence, automobile expenses and insurance payments?
4. 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"?
5. 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?
6. Does "Opt Out" Language need to be included in Preliminary Conference Orders addressing temporary maintenance and/or unallocated temporary support?
7. 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?
III. Counsel and Expert Fees, effective October 12, 2010, creates a rebuttal 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
IV. Modification of Child Support, effective October 12, 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.
Questions on Modification of Child Support
1. Does the new law apply to orders granting (or denying) a post-judgment request to modify child support set forth in divorce judgment granted before October 12, 2010?
Orders of Protection, effective August 13, 2010, amends Family Court Act Section 842 and provides that orders of protection may not be denied solely because the acts are not contemporaneous with the application and may be extended
... a court shall not deny an order of protection, or dismiss an application for such an order, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the application or the conclusion of the action. The duration of any temporary order shall not by itself be a factor in determining the length or issuance of any final order.
The court may also, upon motion, extend the order of protection for a reasonable period of time upon a showing of good cause or consent of the parties. The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order. The court must articulate a basis for its decision on the record.