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Westchester County, NY Family Law Blog

Friday, June 20, 2014

Maintenance Guidelines Bill Fails in New York State Assembly and Senate

I am pleased to report that the maintenance guidelines bill (A9606A, same as S7266A) sponsored by M.A. Helene Weinstein and Senator John Bonacic, which was amended just last week to reduce the proposed maintenance cap to $200,000 of payor's income, has failed to reach the floor of the Assembly or the Senate for a vote, and thus will not be passed this session.  Among other problems with the bill, the proposed cap of $200,000 was illusory, since under the amended bill, the court could simply apply the maintenance formula to the entire combined incomes of the parties and utilize the resulting figure as the "guidelines" award of maintenance, without explaining its reasons for doing so.  Hopefully, the proponents of the bill will reach out to the Family Law Section of the New York State Bar Association, WBASNY, and the AAML, to craft a fair and equitable bill that all can agree upon.


Tuesday, June 3, 2014

Final Maintenance (Alimony) Guidelines- New York State Legislature May Pass An lll-Conceived Bill


I was up in Albany several weeks ago as part of a lobbying effort against another ill-conceived maintenance bill that a coalition of poverty law and other groups are trying to push through the New York Legislature.  Senate Bill S7266 (same as Assembly Bill A9606) is a similar bill to the one Assemblywoman Amy Paulin introduced last year in a failed attempt to introduce final maintenance guidelines in New York State; that is, a formula for the amount and duration of alimony regardless of the specific circumstances of the parties.  This new bill is being pushed by Senator Bonacic and Assemblywoman Helene Weinstein.  At least this reincarnation of last year's bill provides for the termination of maintenance (alimony) upon remarriage (unlike the Paulin bill), but it is still a disaster.

The bill is being opposed by the Family Law Section of the New York State Bar Association, the American Academy of Matrimonial Lawyers New York Chapter, the Women's Bar Association of the State of New York, and other bar groups.  That should tell you something.  The reason why lawyers, including me (I am co-chair of the New York State Family Law Section's Committee on Legislation and a fellow of the AAML), don't want this bill to pass is simple- it is unfair to the payor spouse, and it incorrectly presumes that everyone's circumstances are the same.  If your client doesn't like the presumption, he or she will be forced to litigate against it.  Good news for lawyers who like to litigate.  For those of us who like to settle our cases, not such good news.  However, the bill has traction in both the Assembly and Senate. The good news is that there are several legislators who expressed reservations about the bill, but it remains to be seen whether that will be enough to prevent its passage by the end of the legislative session in mid-June 2014.  


Friday, June 21, 2013

Final Maintenance (Alimony) Guidelines in New York – Dodging the Bullet


During the final weeks of the Spring 2013 New York State legislative session, Assemblywoman Amy Paulin introduced (and later amended) Assembly bill A6728, which, among other things, would have established final maintenance guidelines in New York State,  and would have repealed Domestic Relations Law § 248 providing for the termination of maintenance (alimony) upon remarriage. Yes, you read the last line correctly. Under this bill, despite remarriage, alimony recipients would still be entitled to collect support from their ex-husbands and wives unless the payor could demonstrate to a court that the recipient had experienced a substantial change of financial circumstances.  Moreover, the proposed amount and duration of maintenance under the formula was excessive, particularly where child support would be awarded as well, and was based on the faulty presumption that all non-monied spouses deserve the same amount and length of maintenance.  It should be noted that many of the provisions of this bill were contrary to the recommendations of the Law Revision Commission in its May 15, 2013 report (the subject of a previous blog update).  Fortunately, the bill was opposed by the Family Law Section of the New York State Bar Association, the American Academy of Matrimonial Lawyers, and other bar groups, and was never brought to a vote in the Assembly before the close of the session.  The bill also faced resistance in the State Senate.  The bad news is that this ill-conceived bill is likely to return soon, since it is being pushed by certain women’s advocacy organizations with political clout in the State Legislature.    


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.        


Friday, April 19, 2013

Appellate Court Rules That A Non-Custodial Parent Is Not Entitled To Child Support Payments

The Appellate Division, First Department has reversed a Manhattan Supreme Court judge who held that an unemployed, non-custodial mother would be entitled to child support from a far wealthier father;(see Rubin v. Della Salla, 2013 N.Y. Slip Op. 02681 (1st Dept. 2013)).  The parents were never married; thus, the mother was not entitled to alimony; however, she had sought an award of child support from the lower court, claiming that despite the fact that the father was awarded custody (resulting in him having the child 56% of the time), it would be unjust and inappropriate for the court not to award her child support.  The lower court agreed with the mother, and refused to dismiss her application for child support as requested by the father.  The father appealed.

The appellate court reversed the lower court's ruling, holding that the child support statute (known as the Child Support Standards Act, found in Domestic Relations Law Section 240), as well as the supporting case law, make it clear that despite any economic disparity between parents, only the "custodial parent," defined as the parent who has the child for the majority of the year, is entitled to an award of child support.


Wednesday, March 20, 2013

Landmark Decision in New York Prenuptial Agreement Case?

by Benjamin Schub    

On February 20, 2013, a New York appellate court affirmed a Nassau County lower court’s decision to set aside the prenuptial agreement of Elizabeth Petrakis, a woman dubbed by ABC News as the “Long Island Millionare’s Wife” (see Cioffi-Petrakis v. Petrakis, 103 A.D.3d 766 (2nd Dept. 2013)). 


Read more . . .




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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