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Westchester County, NY Family Law Blog

Tuesday, May 21, 2013

New York State Law Revision Commission Issues New Report on Maintenance Guidelines

On May 15, 2013, the New York State Law Revision Commission (the “LRC”) issued its long-awaited Final Report On Maintenance Awards In Divorce Proceedings (the “Report”).  In the Report, the LRC recommends that the New York State Legislature amend the current temporary maintenance formula found in Domestic Relations Law § 236B(5-a) by limiting its application to the first $136,000 of the parties’ combined adjusted gross income (subject to biennial cost of living adjustments to the $136,000 figure).  If a court finds that the presumptive award (i.e., the award based on combined adjusted gross income of $136,000) is unjust or inappropriate based on the circumstances of the parties, the court should have the discretion to adjust the presumptive award based on certain factors.  The LRC further recommends that where the parties’ combined adjusted gross income exceeds $136,000, the court should be guided by a set of statutory factors in considering an additional award based on income exceeding $136,000.  It is notable that the $136,000 cap recommended by the LRC is identical to the cap found in the Child Support Standards Act (Domestic Relations Law § 240). 

With respect to final maintenance awards, the LRC recommends the adoption of the same formula utilized for temporary maintenance awards, with the same $136,000 cap on the combined adjusted gross incomes of the parties, similar court discretion to adjust the presumptive award based on the circumstances of the parties, and the ability to grant an additional award based on income exceeding $136,000 where the parties’ combined adjusted gross income exceeds $136,000.  The LRC further recommends that the duration of a final maintenance award be based on consideration of the length of the marriage, the length of time necessary for the maintenance recipient to acquire sufficient education/training to find appropriate employment, the availability of retirement benefits, and other factors.

Moreover, of great significance, the LRC further recommends that a party’s increased earning capacity no longer be considered a marital asset subject to equitable distribution, a recommendation that, if adopted, would effectively overrule the controversial New York Court of Appeals case of O’Brien v. O’Brien, 66 N.Y.2d 576 (1985).

As an attorney who participated in the roundtable discussion held at Albany Law School on October 25, 2011 referenced in the LRC Report, it is gratifying to note that the LRC’s recommendations were influenced by the input of the judges, bar associations and attorneys who are required to apply the maintenance laws of this state on a regular basis.  It remains to be seen what the New York State Legislature will do with these recommendations.        




Berman Frucco Gouz Mitchel & Schub p.c. is located in White Plains, NY and serves clients throughout Westchester County, including but not limited to Ardsley, Bronxville, Bedford, Briarcliff Manor, Chappaqua, Dobbs Ferry, Eastchester, Harrison, Hartsdale, Hastings on-Hudson, Irvington, Larchmont, Mamaroneck, Mount Kisco, Mount Vernon, New Rochelle, Pelham, Pleasantville, Pound Ridge, Purchase, Rye, Scarsdale, Tarrytown, Sleepy Hollow, White Plains, Yonkers, and Yorktown.



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