calculatorIdentifying marital property and determining how to equitably distribute that property is very often made far more difficult when one spouse is financially dependent on the other. In order to prevent the “breadwinning” spouse from leaving the other spouse without a source of support, New York authorizes courts to award temporary maintenance while a divorce is pending. A court in the Rochester area recently considered a wife’s request for temporary maintenance in an ongoing divorce matter. The court’s April 2016 ruling in Cooper v. Cooper reviews the temporary maintenance guidelines, analyzes the parties’ assets, and assesses whether the payment of maintenance would even be possible at that particular point in time.

The guidelines for temporary maintenance are set forth in § 236(B)(5-a) of the New York Domestic Relations Law. Prior to January 1, 2016, the “income cap” for temporary maintenance calculations was $175,000 per year. If the payor’s income is less than or equal to that amount, and the payor is also paying child support to the payee, the guideline amount of temporary maintenance (TM) is the lesser of 20 percent of the payor’s income (Pr) minus 25 percent of the payee’s income (Pe), which could be written as TM = (Pr × 20%) – (Pe × 25%), or the difference between 40 percent of the sum of the parties’ income and the payee’s income, or TM = ((Pr + Pe) × 40%) – Pe. Child support is deducted from the payor’s income and included in the payee’s. If the lesser of the two amounts is less than zero, the guideline amount is zero dollars.

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heartbreakNew York state law allows courts to award spousal maintenance, also known as “spousal support,” “alimony,” or simply “maintenance,” to a spouse in a divorce proceeding. Maintenance orders vary widely in duration and amount, depending on the circumstances of the parties. Calculating the amount of maintenance payments has been the subject of much controversy, resulting in reforms by the New York State Legislature in the summer of 2015. A New York appellate court addressed a common ground for disputing a maintenance order, which was that the amount of the order “is excessive and should be reduced,” in its March 2016 ruling in Stuart v. Stuart.

Two types of maintenance are available in New York divorce cases. Temporary maintenance must be paid while the divorce case is pending, but it terminates once the court grants the divorce. Post-divorce maintenance, as the name suggests, is payable after the parties are divorced. The duration may be for a defined period of time, as agreed by the parties or ordered by the court. Otherwise, it could be payable until either spouse dies or the recipient spouse remarries.

New York has modified its provisions for calculating maintenance twice in the past six years. In 2010, the Legislature passed a bill applying a formula to temporary maintenance calculations, but it left a less structured system in place for calculating post-divorce maintenance. These provisions reportedly resulted in some situations that were not only unjust but also unrealistic, with people being ordered to pay maintenance amounts greater than their actual income. A bill passed by the Legislature in June 2015, and signed by the Governor in September, applies a formula to post-divorce maintenance calculations. The rather complicated series of formulas is codified in § 236(B)(6) of the New York Domestic Relations Law (DRL).

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beachNew York child support law establishes guidelines that base the amount of a child support obligation on a percentage of the parents’ combined income. The percentage used in this calculation depends on the number of children who are to be the beneficiaries of the support. The guidelines only apply, however, to the parents’ combined income up to a certain amount. The state is required to adjust this statutory cap every two years, beginning in 2016, based on changes in the consumer price index. New York courts have held that, in order to apply the guideline percentages to income above this upper limit, a court must make specific findings regarding a child’s need for additional support. A New York appellate court addressed this issue last year in a divorce case, Antinora v. Antinora.

New York’s Child Support Standards Act (CSSA) created general guidelines for calculating child support, found in § 240(1-b) of the New York Domestic Relations Law. For one child, the guideline amount of child support is 17 percent of the combined parental income (CPI). This amount is then prorated based on each parent’s share of CPI. Typically, the noncustodial parent will then be obligated to pay their prorated amount to the custodial parent as child support. The percentage increases for each child up to five children. The minimum guideline percentage for five or more children is 35 percent. Courts may set child support in different amounts based on various factors, but the CSSA provides a standard to apply to all cases.

The Domestic Relations Law states that the guideline percentages only apply to CPI up to a certain amount, which is determined by the state based on standards set forth in § 111-I of the Social Services Law. As of April 1, 2016, the CPI amount is $143,000. A court cannot apply the guideline percentages to CPI above that amount without making specific findings regarding certain factors.

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FireworksWhen the parents of one or more minor children file for divorce in New York, a court must make or approve arrangements for the support of the child or children. The child support obligation becomes part of the final judgment of divorce, and it is enforceable like any other court order. Since child support enforcement can involve prosecution in the court system by a state agency, various constitutional concerns can potentially come into play. A New York federal court recently ruled that it lacked jurisdiction to hear a child support obligor’s civil rights claim against the family court officials. The court dismissed the obligor’s claim in Kneitel v. Palos, et al. with prejudice, meaning he is barred from filing it again.

Federal law allows individuals to file suit against federal, state, or local government officials for depriving them “of any rights, privileges, or immunities” while acting in an official capacity. A claim filed under this law is known as a “1983 claim,” after the law’s codification in 42 U.S.C. § 1983. It allows claims for violations of due process, equal protection, and other constitutional rights. Certain public officials may be protected from liability for certain acts, however, and federal courts lack jurisdiction over certain matters.

The Constitution and a wide range of statutes and court decisions have established that the federal government has exclusive jurisdiction over certain matters, the states have exclusive jurisdiction over others, and on many other matters they share jurisdiction. Domestic relations, including divorce, alimony, and child support, have generally remained under the jurisdiction of state governments and state laws. The U.S. Supreme Court has repeatedly affirmed this view, beginning in 1859 in Barber v. Barber, in 1890’s In re Burrus ruling, and in 2004 in Elk Grove Unif. Sch. Dist. v. Newdow.

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balance-154516_640Future trips to court may be necessary to enforce maintenance or support obligations after a divorce in New York. Even if a court enters a judgment for unpaid obligations, the judgment creditor may have to go to court again to enforce the judgment. An order issued by the Supreme Court of Monroe County last summer in M.M. v. T.M. addresses this type of situation. The court described “a seemingly interminable battle” between the parties, with the most recent order enforcing a judgment against the judgment debtor’s retirement plan and a retainer paid to his attorney. Quoting Robert Frost about “a road not taken,” the court ventured away from New York family law and into laws dealing with retirement plans and the attorney-client relationship.

The federal Employee Retirement Income Security Act (ERISA) establishes standards for the administration of various types of retirement plans. It generally prohibits the assignment of retirement benefits, unless the assignment is made in accordance with state family law in an order known as a “qualified domestic relations order” (QDRO). The division or assignment of retirement benefits in a divorce case therefore typically requires a QDRO signed separately by the court.

The dispute in M.M. also involved a retainer paid by the ex-husband/judgment debtor to his attorney. The status of a retainer paid to an attorney, under New York law, depends to some extent on the agreement between the attorney and the client. The general rule is that, in the absence of a specific written agreement stating otherwise, the attorney holds the retainer funds in escrow, and the client maintains an interest in any funds not earned by the attorney. State law requires attorneys to maintain a special bank account for escrowed client funds, and ethics rules require attorneys to take great care in managing these funds.

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Counselling [Public domain, CC0 1.0 (], via PixabayWhen married parents of one or more minor children seek a divorce in New York, they must arrange for the custody and support of the children before a court may make a final order of divorce. Courts welcome efforts by the parties to a divorce to reach an agreement with regard to child support and other issues. Otherwise, a court will decide these issues after a trial. The party entitled to receive support payments (the “obligee”) may enforce a support order against the party ordered to pay support (the “obligor”) by initiating a new proceeding in court. A New York Appellate Court recently considered an obligor’s challenge to a finding that he “willfully” violated a support order in Matter of O’Sullivan v. Schebilski.

A common arrangement for child custody and child support involves a child living with one parent and having visitation with the other parent, while that other parent makes child support payments. A child support obligation remains in effect until the child turns 21, dies, or is legally emancipated. New York courts may take a wide range of factors into consideration when determining the amount of a child support obligation, including the health and educational needs of the child or children, each parent’s income and earning capacity, and any disabilities or needs affecting either parent.

The parties in O’Sullivan are the parents of one child, who was born in 1992. A court issued a support order in July 2005 and modified it in September 2009. It ordered the father/obligor to pay $142 per week in child support, although the O’Sullivan ruling does not state if this was the original or the modified amount. The mother/obligee brought an enforcement action against the obligor in February 2013, claiming that he owed about $80,000 in child support.

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By דקי (Own work) [CC BY-SA 3.0 ( or GFDL (], via Wikimedia CommonsA person seeking a divorce anywhere in the United States in 2016 is no longer required to prove wrongdoing by the other spouse. In 1970, California enacted the nation’s first “no fault” divorce statute, which allows a spouse to bring a cause of action for divorce based on “irreconcilable differences.” New York was the last state to authorize no-fault divorce, on the ground that “[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months,” in 2010. Many states now only allow no-fault divorce, but New York is among the states that still allow fault-based claims for divorce, such as “cruel and inhuman treatment,” abandonment, and adultery. This can play a role in multiple aspects of a New York divorce, as a Brooklyn court noted in a December 2015 decision, Alice M. v. Terrance T. The court went so far as to describe it as a perfect example of “egregious conduct by one spouse against another spouse.”

The two main issues in the Alice M. case were the equitable division of marital property and a claim for spousal maintenance. Under New York law, most property acquired during a marriage is deemed marital property. Section 236(B)(5) of the New York Domestic Relations Law (DRL) establishes procedures for the equitable distribution of marital property, based on factors like the age and health of the parties, each party’s income, equitable claims or waste by one spouse, or other factors that the court “expressly find[s] to be just and proper.” The court in Alice M. noted that, based on a precedent case, “marital fault is not…‘a just and proper’ consideration in determining equitable distribution of marital property.”

Spousal maintenance, sometimes still known as alimony, is governed by § 236(B)(6) of the DRL. The court may order an amount to be paid by one spouse to the other, based on economic factors like whether child support is to be paid and in what amount, the payor’s ability to pay, and the payee’s needs; and on fault-based factors like waste of marital property and acts of domestic violence by one spouse against another.

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Tumisu [Public domain, CC0 1.0 (], via PixabaySpousal support, also known as spousal maintenance or alimony, is sometimes part of a final divorce judgment in New York. State law regarding spousal maintenance often describes the obligation using specific gender terms, with the ex-husband responsible for payments to support the ex-wife. The statute addressing modification or termination of maintenance uses this sort of language. This balance of financial power has never been the case for every divorcing couple in New York, and this is probably relevant more so now than at any point in the past. In April 2015, the Supreme Court of Monroe County, New York considered in Sanseri v. Sanseri whether current law regarding termination of maintenance needs to be reconsidered or updated.

Section 236 of the New York Domestic Relations Code identifies alimony as payments by one spouse, regardless of gender, “to provide suitably for the support of the other.” State law provides two mechanisms for modifying or terminating maintenance, which the Sanseri court reviewed in its order. Domestic Relations Law § 236(B)(9)(b)(1) has two provisions. If a prior court order established a maintenance obligation, “modification requires proof of a substantial change in circumstances.” If maintenance is established in a separation agreement, proof of “extreme hardship” is required. Both “extreme hardship” and “substantial change” are largely based on the difference between the payor’s financial state at the times of the order and the motion to modify.

Section 248 of the Domestic Relations Law, enacted in 1938, provides that a husband can move for modification or termination of maintenance if “the wife is habitually living with another man and holding herself out as his wife.” The meaning of “holding herself out” was at the center of the dispute in Sanseri. The court looked to the legislative and jurisprudential history of marriage in New York to find an answer.
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jarmoluk [Public domain, CC0 1.0 (], via PixabayObtaining a divorce in New York City requires filing a lawsuit, of sorts, and obtaining a judge’s approval on a final judgment. Even if the parties are able to agree the terms of the divorce, the judge must sign a final judgment. Parties to a divorce may choose to reconcile, and therefore to discontinue the court proceeding. New York law and court rules set certain limits, however, on when a plaintiff can discontinue a divorce suit without the court’s permission. A Manhattan court recently considered a husband’s effort to unilaterally discontinue a divorce case in Marcilio v. Hennessy, ruling that his notice was untimely and barred by equitable principles.

Divorce cases in New York may proceed in much the same way as other lawsuits. One of the spouses, as plaintiff, files a complaint with the Supreme Court of their county. The plaintiff must provide notice to the other party, i.e. their spouse. In many divorce cases, the plaintiff does not formally serve their spouse with papers, in the interest of maintaining a relatively civil atmosphere.

New York recently enacted a “no-fault” divorce law, meaning that a plaintiff in a divorce case is no longer required to allege fault in the breakdown of the marriage. This has, at least somewhat, helped keep more amicable divorce cases from becoming contentious. It also allows parties to focus on resolving issues like property division and child support. Once this process is underway, New York court rules set limits on when a plaintiff can discontinue a case.
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PAR~commonswiki [Public domain], via Wikimedia CommonsIn order to file for divorce in New York, a person must establish that they, their spouse, or the circumstances of the divorce meet the state’s residency requirements. Section 230 of New York’s Domestic Relations Law identifies five scenarios in which a person may file for divorce in this state, usually based on where one or both parties reside. In some circumstances, a New York court may hear a divorce case, with a much reduced residency requirement, if a cause of action related to the divorce occurred within the state. A Manhattan court considered a claim last year in Stancil v. Stancil that “the irretrievable breakdown of the marriage,” the condition for a “no-fault” divorce, occurred in this state, even if the parties did not otherwise meet the residency requirements. The court disagreed.

The issue of residency is based on the legal doctrine of personal jurisdiction, a court’s authority to exercise power over a party. The legal issues surrounding personal jurisdiction are quite complex, but a simple way to summarize them is to say that a court cannot exercise personal jurisdiction over someone who has no connection to the state in which the court sits. A person attempting to sue a resident of Hawaii in a New York court, for example, must be able to show some connection to New York. The type of connection depends on the type of case.

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