WESTCHESTER WOMEN'S BAR ASSOCIATION
OF THE STATE OF NEW YORK
NEW MATRIMONIAL LAWS: No Fault Divorce, Temporary and Post Divorce Maintenance Guidelines, Counsel & Expert Fees, Modification of Child Support And Orders of Protection
May 21, 2011
2:00 p.m. - 4:00 p.m.
2:00 p.m. - 2:15 p.m. Introduction
2:15 p.m. - 2:30 p.m. Dolores Gebhardt No Fault Divorce
2:30 p.m. - 2:45 p.m. Kathleen Donelli Temporary Maintenance Guidelines
2:45 p.m. - 3:00 p.m. Post Divorce Maintenance Guidelines
3:00 p.m. - 3:15 p.m. Dolores Gebhardt Counsel & Expert Fees
3:15 p.m. - 3:30 p.m. Patricia Hennessey Modification of Child Support
Orders of Protection: Acts need not be relatively contemporaneous
3:30 p.m. - 3:50 p.m. Overview of the New Matrimonial Laws
Dolores Gebhardt, Esq.
McCarthy Fingar LLP
Kathleen Donelli, Esq.
McCarthy Fingar LLP
Patricia Hennessey, Esq.
Cohen Hennessey & Bienstock P.C.
TABLE OF CONTENTS
I. "No Fault" Divorce: Questions and Relevant Case Law.................................... 1
Verified Complaint with new no fault ground under DRL §170(7)..........................
II. Temporary Maintenance Guidelines and Factors For Determining Post-Divorce Maintenance
Includes Low Income Adjustment with
III. Counsel and Expert Fees
52 A.D.3d, 61, 858 N.Y.S.2d 667 (2d Dep't. 2008) ............................................... 9-10
IV. Modification of Child Support
V. Orders of Protection ................................................................................................... 13
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 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.
Granger v. Granger, 31 Misc.3d 1210(A) (Queens Co., J. Markey) – The court applied and followed the decision in Heinz v. Heinz.
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?
A.C. v. D.R., 2011 WL1137739 (2011 N.Y. Slip Op. 21113) (Nassau Co., J. Falanga, 3/28/11). Judge Falanga changes his mind about a jury trial because "a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage" on grounds of irretrievable breakdown.
Strack v. Strack, 31 Misc.3d 258, 916 N.Y.S.2d 759 (Essex Co., J. Muller)- 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. 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
___ The guideline formula produces a presumed dollar amount:
30% of Payor's Income
- 20% of Payee's Income
40% of Combined Incomes
- Payee's Income
__ Presumptive award is the lesser of Alternative 1 and Alternative 2
2. DRL §236 Part B (6): Factors For Determining Post-Divorce Maintenance
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 (LRC) to study and access the economic consequences of divorce on married couples, to review the spousal maintenance laws. LRC's May 11, 2011 preliminary report by is on WBASNY website; its final report is to be submitted to the Legislature and the Governor with recommendations by December 31, 2011.
Relevant Case Law on Temporary Maintenance and Counsel Fees
Scott M v. Ilona M, 915 N.Y.S.2d 834, 2011 N.Y. Slip Op. 21026 (Kings Co., J. Sunshine, 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.
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.
A.C. v. D.R., 2011 WL 1137739, 2011 N.Y. Slip Op. 21113 (Nassau Co., J. Falanga, March 28, 2011)
Husband is a 52-year old physician with a gross annual income of $529,857 and Wife is a 48-year old homemaker with a 1990 Masters in Journalism with an annual income of $29,857. Parties were married on October 4, 1992 and have three children.
Court finds that the presumptively correct amount of temporary maintenance in the amount of $130,787.50 per year ($10,897 per month) is not unjust or inappropriate. Court also directs husband to pay $3,000 pendente lite child support per month for the parties' three children. Wife awarded $25,000 interim counsel fee.
J.H. v. W.H., 2011 WL 1158653, 2011 N.Y. Slip Op. 50478 (Kings Co., J. Thomas Mar. 18, 2011)
Parties married on September 2, 1996 and have three children. Husband is a 53 year old court officer and earned approximately $107,953 for 2009. Wife is a 46-year old teacher who worked three part-time jobs in 2009 and earned $11,660, and claims to have been a stay-at-home mother since children were born. Parties own rental property together which generated in excess of $4,500 per month. In determining parties' income, parties' rental income was not added to either party's income given that the income does not cover total cost of parties' investment. Court finds husband payor spouse's adjusted income as $96,553.55 and wife payee spouse's adjusted income is $11,289.46. Court determines that the presumptive amount of maintenance is $26,708.26 and finds that amount in not unjust or inappropriate. Court also awarded $20,255.13 per year pendente lite child support. Court finds that based upon award of temporary maintenance and child support awards, husband can no longer be considered the "monied spouse" given such a substantial financial shift in actual financial resources, and determined that each party is responsible for his or her own counsel fees.
P.C. v. K.K., 30 Misc.3d 1211(A) (Kings Co., J. Thomas Jan. 07, 2011)
Plaintiff husband, who is 31 and has been employed as opera singer during marriage seeks temporary maintenance, alleging that his bi-polar condition negatively impacts his earning capacity. Purpose of pendente lite award is to ensure need spouse is provided with funds for his or her reasonable needs. Court not required to reply on party's own account of finances and may impute income to party based upon past income or demonstrated earning potential. Court determined that plaintiff husband not entitled to temporary maintenance award to maintain his status quo. Plaintiff, in his reply affidavit, acknowledges that he is no longer able to continue to perform as an opera soloist given his deteriorating mental health, which undercuts is reason for seeking temporary maintenance to relocate to NYC to get his career as an opera singer "back on track." Now, there is no need for plaintiff to live in NYC to bear high cost of living. Court notes that plaintiff is currently living with his parents rent-free and has received $57,961.60 inheritance from his father.
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
Relevant Case Law on Counsel Fees
Witter v. Daire, 81 A.D.3d 720, 720, 916 N.Y.S.2d 524 (2d Dept. 2011)
Relying on Prichep v. Prichep, 52 A.D.3d 6165, the court vacated Judge Tolbert's award of $10,000 interim counsel fees to the Husband and awarded $125,000 interim counsel fees to the Husband because the "resources available to the Wife far exceed those available to the Husband" and the Husband's requests "are reasonable under the circumstances" (cites omitted). The court acknowledged that the Husband was not entitled to counsel fees for challenging the validity of the parties' prenuptial agreement but reasoned that Judge Tolbert limiting counsel fees because the litigation of other matters may be unnecessary or premature "did not warrant the denial of the requested amounts of interim counsel fees ... ."
Sample of Recent Caselaw since the Prichep v. Prichep matter, 52 A.D.3d 61, 858 N.Y.S.2d 667, Supreme Court, Appellate Division, Second Department, New York.
Moreira v. Moreira, 2011 N.Y. Slip Op. 04014, 2011 WL 1816947 (2d Dep't)
Cooper v. Cooper, 2011 N.Y. Slip Op. 03989, 2011 WL 1817757 (2d Dep't)
Jennifer G. v. Benjamin H., 2011 N.Y. Slip Op. 03686, 2011 WL 1675290 (3d Dep't)
Matter of S.B.S. v. S.S., NYLJ, May 2, 2011
Mimran v. Mimran, 2011 N.Y. Slip Op. 03175, 2011 WL 1496465 (1st Dep't)
Fields v. Fields, 2011 N.Y. Slip Op. 01930, 2011 WL 904162 (1st Dep't)
Gaffney-Romanello v. Romanello, 2011 N.Y. Slip Op. 01970, 2011 WL 924350 (2d Dep't)
Le v. Le, 2011 N.Y. Slip Op. 01807, 2011 WL 834196 (2d Dep't)
McMahan v. McMahan, 66 A.D.3d 969, 888 N.Y.S.2d 133 (2d Dept October 27, 2009).
Amount Awarded: $100,000.00
Rosenbaum v. Rosenbaum, 55 A.D.3d 713, 866 N.Y.S.2d 234 (2d Dept. October 14, 2008).
Amount Awarded: $75,000.00
Gordon v. Gordon, 20 Misc. 3d 1133(A), 872 N.Y.S.2d 690, Supreme Court, Nassau County, New York. July 14, 2008.
Amount Awarded: $70,000.00
Penavic v. Penavic, 60 A.D.3d 1026, 877 N.Y.S.2d 118 (2d Dept. March 31, 2009).
Amount Awarded: $200,000.00
Kooper v. Kooper, 901 N.Y.S.2d 312 (2d Dept. May 11, 2010).
Amount Awarded: $100,000.00
Frase v. Frase, 24 Misc.3d 1235(A), 899 N.Y.S.2d 59, Supreme Court, Westchester County, New York. July 31, 2009.
Amount Awarded: $50,000.00
Moccia v. Moccia, 82 A.D.3d 1064, 918 N.Y.S.2d 802 (2d Dept. March 22, 2011)
Amount Awarded: $0
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.
Relevant Case Law on Modification of Child Support
Comm. of Soc. Serv. ex rel. Warner v. Deno, 31 Misc.3d 490, 2011 N.Y. Slip Op. 21036 (Family Court, Franklin Co. J. Main, February 8, 2011) – support petition filed the same day that the new child support legislation went into effect. Legislation appears to be for modification of child support, but this petition is seeking an initial order of support. Court finds that the new legislation does not affect current case law regarding initial applications for child support. Court may impute income to a party who loses employment due to his or her own conduct.
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.
MODIFICATION OF CHILD SUPPORT WAIVER
6. Notwithstanding the parties' waiver of the provisions of the Child Support Modification Act set forth in this Article, the child support set forth in this Agreement may be increased or decreased by a Court upon the standards for modification of child support set forth in Boden v. Boden, 42 N.Y.2d 210 (1977) (requiring a showing of an unanticipated and unreasonable change of circumstances where the children's needs are being adequately met) and in Brescia v. Fitts, 56 N.Y.2d 132 (1982) (setting forth factors to be considered where the children's needs are not being adequately met).
V. 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.