S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2345
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   January 22, 2015
                                      ___________
       Introduced  by  Sen. HASSELL-THOMPSON -- read twice and ordered printed,
         and when printed to be committed to the Committee on Judiciary
       AN ACT to amend the domestic relations law and the family court act,  in
         relation  to modifications of temporary maintenance awards and mainte-
         nance obligations; and repealing section 248 of the domestic relations
         law, relating thereto
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Subdivision  5-a of part B of section 236 of the domestic
    2  relations law, as added by chapter 371 of the laws of 2010,  is  amended
    3  to read as follows:
    4    5-a.  Temporary  maintenance  awards. a. Except where the parties have
    5  entered into an agreement pursuant to subdivision  three  of  this  part
    6  providing  for  maintenance,  in  any matrimonial action the court shall
    7  make its award for temporary maintenance pursuant to the  provisions  of
    8  this subdivision.
    9    b.  For  purposes of this subdivision, the following definitions shall
   10  be used:
   11    (1) "Payor" shall mean the spouse with the higher income.
   12    (2) "Payee" shall mean the spouse with the lower income.
   13    (3) "Length of marriage" shall  mean  the  period  from  the  date  of
   14  marriage until the date of commencement of action.
   15    (4) "Income" shall mean[:
   16    (a)] income as defined in the child support standards act and codified
   17  in  section  two  hundred forty of this article and section four hundred
   18  thirteen of the family court act[; and
   19    (b) income from income producing property to be  distributed  pursuant
   20  to subdivision five of this part].
   21    (5)  "Income  cap" shall mean up to and including [five] THREE hundred
   22  thousand dollars of the payor's annual income; provided, however, begin-
   23  ning January thirty-first, two thousand [twelve] FIFTEEN and  every  two
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07948-01-5
       S. 2345                             2
    1  years  thereafter, the [payor's annual] income CAP amount shall increase
    2  by the product of the average annual percentage changes in the  consumer
    3  price  index  for all urban consumers (CPI-U) as published by the United
    4  States  department  of labor bureau of labor statistics for the two year
    5  period rounded to the nearest one thousand dollars. The office of  court
    6  administration shall determine and publish the income cap.
    7    (6)  "Guideline  amount of temporary maintenance" shall mean the [sum]
    8  DOLLAR AMOUNT derived by the application of paragraph c  OR  D  of  this
    9  subdivision.
   10    [(7)  "Guideline duration" shall mean the durational period determined
   11  by the application of paragraph d of this subdivision.
   12    (8) "Presumptive award" shall mean the guideline amount of the  tempo-
   13  rary  maintenance  award for the guideline duration prior to the court's
   14  application of any adjustment factors as provided in subparagraph one of
   15  paragraph e of this subdivision.
   16    (9)] (7) "Self-support reserve" shall mean the self-support reserve as
   17  defined in the child support standards act and codified in  section  two
   18  hundred  forty  of this article and section four hundred thirteen of the
   19  family court act.
   20    c. [The court shall determine the guideline amount of temporary  main-
   21  tenance in accordance with the provisions of this paragraph after deter-
   22  mining the income of the parties:
   23    (1) Where the payor's income is up to and including the income cap:
   24    (a) the court shall subtract twenty percent of the income of the payee
   25  from thirty percent of the income up to the income cap of the payor.
   26    (b)  the court shall then multiply the sum of the payor's income up to
   27  and including the income cap and all of  the  payee's  income  by  forty
   28  percent.
   29    (c)  the  court shall subtract the income of the payee from the amount
   30  derived from clause (b) of this subparagraph.
   31    (d) the guideline amount of temporary maintenance shall be  the  lower
   32  of  the  amounts determined by clauses (a) and (c) of this subparagraph;
   33  if the amount determined by clause (c) of this subparagraph is less than
   34  or equal to zero, the guideline amount shall be zero dollars.
   35    (2) Where the income of the payor exceeds the income cap:
   36    (a) the court shall determine the guideline amount of temporary  main-
   37  tenance for that portion of the payor's income that is up to and includ-
   38  ing the income cap according to subparagraph one of this paragraph, and,
   39  for  the  payor's  income  in  excess of the income cap, the court shall
   40  determine any  additional  guideline  amount  of  temporary  maintenance
   41  through consideration of the following factors:
   42    (i) the length of the marriage;
   43    (ii) the substantial differences in the incomes of the parties;
   44    (iii)  the  standard  of  living of the parties established during the
   45  marriage;
   46    (iv) the age and health of the parties;
   47    (v) the present and future earning capacity of the parties;
   48    (vi) the need of one party to incur education or training expenses;
   49    (vii) the wasteful dissipation of marital property;
   50    (viii) the transfer or encumbrance made in contemplation of a matrimo-
   51  nial action without fair consideration;
   52    (ix) the existence and duration of a pre-marital joint household or  a
   53  pre-divorce separate household;
   54    (x)  acts by one party against another that have inhibited or continue
   55  to inhibit a party's earning capacity or ability  to  obtain  meaningful
   56  employment.  Such  acts  include but are not limited to acts of domestic
       S. 2345                             3
    1  violence as provided in section four hundred fifty-nine-a of the  social
    2  services law;
    3    (xi) the availability and cost of medical insurance for the parties;
    4    (xii)  the  care of the children or stepchildren, disabled adult chil-
    5  dren or stepchildren, elderly parents or in-laws that has  inhibited  or
    6  continues  to  inhibit  a  party's earning capacity or ability to obtain
    7  meaningful employment;
    8    (xiii) the inability of one party to obtain meaningful employment  due
    9  to age or absence from the workforce;
   10    (xiv)  the  need  to  pay  for exceptional additional expenses for the
   11  child or children, including, but not limited to,  schooling,  day  care
   12  and medical treatment;
   13    (xv) the tax consequences to each party;
   14    (xvi) marital property subject to distribution pursuant to subdivision
   15  five of this part;
   16    (xvii)  the  reduced  or  lost  earning  capacity of the party seeking
   17  temporary maintenance as a result of having foregone or  delayed  educa-
   18  tion, training, employment or career opportunities during the marriage;
   19    (xviii)  the contributions and services of the party seeking temporary
   20  maintenance as a spouse, parent, wage earner and homemaker  and  to  the
   21  career or career potential of the other party; and
   22    (xix) any other factor which the court shall expressly find to be just
   23  and proper.
   24    (b)]  WHERE  THE  PAYOR'S  INCOME IS LOWER THAN OR EQUAL TO THE INCOME
   25  CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
   26  NANCE AS FOLLOWS:
   27    (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
   28  THIRTY PERCENT OF THE PAYOR'S INCOME.
   29    (2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE  PAYOR'S  INCOME  AND
   30  THE PAYEE'S INCOME BY FORTY PERCENT.
   31    (3)  THE  COURT  SHALL  SUBTRACT  THE  PAYEE'S  INCOME FROM THE AMOUNT
   32  DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
   33    (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
   34  GRAPHS ONE AND THREE OF THIS PARAGRAPH.
   35    (5) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE  AMOUNT
   36  DETERMINED  BY  SUBPARAGRAPH  FOUR OF THIS PARAGRAPH EXCEPT THAT, IF THE
   37  AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR
   38  EQUAL TO ZERO, THE GUIDELINE AMOUNT OF TEMPORARY  MAINTENANCE  SHALL  BE
   39  ZERO DOLLARS.
   40    D.  WHERE  THE  PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
   41  DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE AS FOLLOWS:
   42    (1) THE COURT SHALL PERFORM THE CALCULATIONS  SET  FORTH  IN  SUBPARA-
   43  GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
   44  INCOMES OF PAYOR AND PAYEE.
   45    (2)  THE  COURT  SHALL  PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
   46  GRAPHS ONE THROUGH FOUR OF PARAGRAPH  C  OF  THIS  SUBDIVISION  FOR  THE
   47  INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
   48  PAYEE.
   49    (3) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE EITHER:
   50    (A)  THE  CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
   51  OR
   52    (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
   53  AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION  OF  THE  FACTORS
   54  SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH H OF THIS SUBDIVISION.
   55    (4)  In any decision made pursuant to CLAUSE (B) OF SUBPARAGRAPH THREE
   56  OF this [subparagraph] PARAGRAPH, the court shall set forth the  factors
       S. 2345                             4
    1  it considered and the reasons for its decision IN WRITING.  Such written
    2  [order] DECISION may not be waived by either party or counsel.
    3    [(3)]  E.  Notwithstanding the provisions of this [paragraph] SUBDIVI-
    4  SION, where the guideline amount of temporary maintenance  would  reduce
    5  the  payor's  income below the self-support reserve for a single person,
    6  [the presumptive amount of] the guideline amount  of  temporary  mainte-
    7  nance  shall  be the difference between the payor's income and the self-
    8  support reserve.  If  the  payor's  income  is  below  the  self-support
    9  reserve, there is a rebuttable presumption that no temporary maintenance
   10  is awarded.
   11    [d.]  F.  The court shall determine the [guideline] duration of tempo-
   12  rary maintenance by considering the length of the marriage.
   13    G. Temporary maintenance shall terminate  upon  the  issuance  of  the
   14  [final  award] DETERMINATION of POST-DIVORCE maintenance or the death of
   15  either party, whichever occurs first.
   16    [e.] H. (1) The court shall order the  [presumptive  award]  GUIDELINE
   17  AMOUNT of temporary maintenance in accordance with paragraphs c and d of
   18  this  subdivision,  unless  the court finds that the [presumptive award]
   19  GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE is unjust or inappropriate and
   20  adjusts the [presumptive award] GUIDELINE AMOUNT  of  temporary  mainte-
   21  nance accordingly based upon consideration of the following factors:
   22    (a)  [the  standard  of  living  of the parties established during the
   23  marriage;
   24    (b)] the age and health of the parties;
   25    [(c)] (B) the PRESENT OR  FUTURE  earning  capacity  of  the  parties,
   26  INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
   27    [(d)]  (C)  the  need  of  one  party  to  incur education or training
   28  expenses;
   29    [(e)] (D) the wasteful dissipation of marital property[;
   30    (f) the transfer], INCLUDING TRANSFERS or  [encumbrance]  ENCUMBRANCES
   31  made  in  contemplation  of  a matrimonial action without fair consider-
   32  ation;
   33    [(g)] (E) the existence and duration of a pre-marital joint  household
   34  or a pre-divorce separate household;
   35    [(h)]  (F)  acts  by  one party against another that have inhibited or
   36  continue to inhibit a party's earning  capacity  or  ability  to  obtain
   37  meaningful  employment. Such acts include but are not limited to acts of
   38  domestic violence as provided in section four  hundred  fifty-nine-a  of
   39  the social services law;
   40    [(i)]  (G)  the  availability  and  cost  of medical insurance for the
   41  parties;
   42    [(j)] (H) the care of [the] children or stepchildren,  disabled  adult
   43  children or stepchildren, elderly parents or in-laws PROVIDED DURING THE
   44  MARRIAGE that [has inhibited or continues to inhibit] INHIBITS a party's
   45  earning capacity [or ability to obtain meaningful employment];
   46    [(k) the inability of one party to obtain meaningful employment due to
   47  age or absence from the workforce;
   48    (l)]  (I)  the need to pay for exceptional additional expenses for the
   49  child or children NOT ALREADY CONSIDERED IN  DETERMINING  CHILD  SUPPORT
   50  PURSUANT  TO THE CHILD SUPPORT STANDARDS ACT, including, but not limited
   51  to, schooling, day care and medical treatment;
   52    [(m)] (J) the tax consequences to each party;
   53    (K) THE STANDARD OF LIVING  OF  THE  PARTIES  ESTABLISHED  DURING  THE
   54  MARRIAGE;
   55    [(n)  marital property subject to distribution pursuant to subdivision
   56  five of this part;
       S. 2345                             5
    1    (o)] (L) the reduced or lost earning capacity of  the  [party  seeking
    2  temporary  maintenance]  PAYEE as a result of having foregone or delayed
    3  education, training,  employment  or  career  opportunities  during  the
    4  marriage;
    5    [(p)  the  contributions  and  services of the party seeking temporary
    6  maintenance as a spouse, parent, wage earner and homemaker  and  to  the
    7  career or career potential of the other party;] and
    8    [(q)]  (M) any other factor which the court shall expressly find to be
    9  just and proper.
   10    (2) Where the court  finds  that  the  [presumptive  award]  GUIDELINE
   11  AMOUNT of temporary maintenance is unjust or inappropriate and the court
   12  adjusts  the  [presumptive  award] GUIDELINE AMOUNT of temporary mainte-
   13  nance pursuant to this paragraph, the court shall set forth, in a  writ-
   14  ten  [order]  DECISION, the [amount of the unadjusted presumptive award]
   15  GUIDELINE AMOUNT of temporary maintenance, the  factors  it  considered,
   16  and  the  reasons that the court adjusted the [presumptive award] GUIDE-
   17  LINE AMOUNT of temporary  maintenance.  Such  written  [order]  DECISION
   18  shall not be waived by either party or counsel.
   19    (3)  Where  either  or both parties are unrepresented, the court shall
   20  not enter a temporary maintenance order unless  the  COURT  INFORMS  THE
   21  unrepresented  party or parties [have been informed] of the [presumptive
   22  award] GUIDELINE AMOUNT of temporary maintenance.
   23    [f. A validly executed agreement or  stipulation  voluntarily  entered
   24  into between the parties in an action commenced after the effective date
   25  of this subdivision presented to the court for incorporation in an order
   26  shall  include a provision stating that the parties have been advised of
   27  the provisions of this  subdivision,  and  that  the  presumptive  award
   28  provided  for therein results in the correct amount of temporary mainte-
   29  nance. In the event that such agreement or stipulation deviates from the
   30  presumptive award of temporary maintenance, the agreement or stipulation
   31  must specify the amount that such presumptive award of temporary mainte-
   32  nance would have been and the reason or reasons that such  agreement  or
   33  stipulation  does not provide for payment of that amount. Such provision
   34  may not be waived by either party or counsel.  Nothing contained in this
   35  subdivision shall be construed to alter the rights  of  the  parties  to
   36  voluntarily enter into validly executed agreements or stipulations which
   37  deviate  from  the  presumptive  award of temporary maintenance provided
   38  such agreements or stipulations  comply  with  the  provisions  of  this
   39  subdivision. The court shall, however, retain discretion with respect to
   40  temporary, and post-divorce maintenance awards pursuant to this section.
   41  Any  court  order  incorporating  a validly executed agreement or stipu-
   42  lation which deviates from the presumptive award  of  temporary  mainte-
   43  nance shall set forth the court's reasons for such deviation.
   44    g.]  I.  When  a  party  has  defaulted  and/or the court is otherwise
   45  presented with insufficient evidence to determine  [gross]  income,  the
   46  court  shall  order the temporary maintenance award based upon the needs
   47  of the payee or the standard of living of the parties prior to commence-
   48  ment of the divorce action, whichever is  greater.  Such  order  may  be
   49  retroactively  modified  upward  without  a showing of change in circum-
   50  stances upon a showing of newly discovered or obtained evidence.
   51    [h.] J. In any action or proceeding for modification of  an  order  of
   52  maintenance  or  alimony  existing  prior  to the effective date of this
   53  subdivision, brought pursuant to this article, the temporary maintenance
   54  guidelines set forth in this subdivision shall not constitute  a  change
   55  of circumstances warranting modification of such support order.
       S. 2345                             6
    1    [i. In any decision made pursuant to this subdivision the court shall,
    2  where  appropriate,  consider  the effect of a barrier to remarriage, as
    3  defined in subdivision six of section two hundred  fifty-three  of  this
    4  article, on the factors enumerated in this subdivision.]
    5    K.  THE  COURT  MAY  ALLOCATE  THE  RESPONSIBILITIES OF THE RESPECTIVE
    6  SPOUSES FOR THE FAMILY'S EXPENSES DURING THE PENDENCY OF THE PROCEEDING.
    7    L. THE TEMPORARY MAINTENANCE ORDER SHALL NOT PREJUDICE THE  RIGHTS  OF
    8  EITHER PARTY REGARDING A POST-DIVORCE MAINTENANCE AWARD.
    9    S  2. Subdivision 6 of part B of section 236 of the domestic relations
   10  law, as amended by chapter 371 of the laws of 2010, is amended  to  read
   11  as follows:
   12    6.  Post-divorce  maintenance awards. a. Except where the parties have
   13  entered into an agreement pursuant to subdivision  three  of  this  part
   14  providing  for  maintenance,  in  any  matrimonial action the court [may
   15  order maintenance in such amount as justice requires, having regard  for
   16  the  standard  of living of the parties established during the marriage,
   17  whether the party in whose favor maintenance is granted lacks sufficient
   18  property and income to provide for  his  or  her  reasonable  needs  and
   19  whether the other party has sufficient property or income to provide for
   20  the  reasonable needs of the other and the circumstances of the case and
   21  of the respective parties. Such order shall be effective as of the  date
   22  of  the  application therefor, and any retroactive amount of maintenance
   23  due shall be paid in one sum  or  periodic  sums,  as  the  court  shall
   24  direct,  taking  into  account any amount of temporary maintenance which
   25  has been paid. In determining the amount and duration of maintenance the
   26  court shall consider:
   27    (1) the income and property of the respective parties including  mari-
   28  tal property distributed pursuant to subdivision five of this part;
   29    (2) the length of the marriage;
   30    (3) the age and health of both parties;
   31    (4) the present and future earning capacity of both parties;
   32    (5) the need of one party to incur education or training expenses;
   33    (6)  the  existence and duration of a pre-marital joint household or a
   34  pre-divorce separate household;
   35    (7) acts by one party against another that have inhibited or  continue
   36  to  inhibit  a  party's earning capacity or ability to obtain meaningful
   37  employment. Such acts include but are not limited to  acts  of  domestic
   38  violence  as provided in section four hundred fifty-nine-a of the social
   39  services law;
   40    (8) the ability of the party seeking maintenance to  become  self-sup-
   41  porting  and,  if  applicable, the period of time and training necessary
   42  therefor;
   43    (9) reduced or lost lifetime earning capacity  of  the  party  seeking
   44  maintenance  as a result of having foregone or delayed education, train-
   45  ing, employment, or career opportunities during the marriage;
   46    (10) the presence of children of the marriage in the respective  homes
   47  of the parties;
   48    (11) the care of the children or stepchildren, disabled adult children
   49  or  stepchildren,  elderly  parents  or  in-laws  that  has inhibited or
   50  continues to inhibit a party's earning capacity;
   51    (12) the inability of one party to obtain meaningful employment due to
   52  age or absence from the workforce;
   53    (13) the need to pay  for  exceptional  additional  expenses  for  the
   54  child/children,  including  but  not limited to, schooling, day care and
   55  medical treatment;
   56    (14) the tax consequences to each party;
       S. 2345                             7
    1    (15) the equitable distribution of marital property;
    2    (16)  contributions and services of the party seeking maintenance as a
    3  spouse, parent, wage earner and homemaker, and to the career  or  career
    4  potential of the other party;
    5    (17) the wasteful dissipation of marital property by either spouse;
    6    (18) the transfer or encumbrance made in contemplation of a matrimoni-
    7  al action without fair consideration;
    8    (19)  the  loss  of  health insurance benefits upon dissolution of the
    9  marriage, and the availability and cost of  medical  insurance  for  the
   10  parties; and
   11    (20)  any other factor which the court shall expressly find to be just
   12  and proper] SHALL MAKE ITS AWARD FOR POST-DIVORCE  MAINTENANCE  PURSUANT
   13  TO THE PROVISIONS OF THIS SUBDIVISION.
   14    b. [In any decision made pursuant to this subdivision, the court shall
   15  set forth the factors it considered and the reasons for its decision and
   16  such may not be waived by either party or counsel.
   17    c.  The court may award permanent maintenance, but an award of mainte-
   18  nance shall terminate upon the death of either party or upon the recipi-
   19  ent's valid or invalid marriage, or upon modification pursuant to  para-
   20  graph  b  of  subdivision  nine  of  this  part  or  section two hundred
   21  forty-eight of this chapter.
   22    d. In any decision made pursuant to this subdivision the court  shall,
   23  where  appropriate,  consider  the effect of a barrier to remarriage, as
   24  defined in subdivision six of section two hundred  fifty-three  of  this
   25  article,  on the factors enumerated in paragraph a of this subdivision.]
   26  FOR PURPOSES OF THIS SUBDIVISION, THE  FOLLOWING  DEFINITIONS  SHALL  BE
   27  USED:
   28    (1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
   29    (2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
   30    (3) "INCOME" SHALL MEAN:
   31    (I)  INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
   32  IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND  SECTION  FOUR  HUNDRED
   33  THIRTEEN OF THE FAMILY COURT ACT, EXCEPT THAT TEMPORARY MAINTENANCE PAID
   34  PURSUANT  TO  SUBDIVISION  FIVE-A  OF THIS PART AND SPOUSAL SUPPORT PAID
   35  PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT  ACT,  SHALL
   36  NOT BE DEDUCTED FROM PAYOR'S INCOME; AND
   37    (II)  INCOME  FROM  INCOME-PRODUCING  PROPERTY  DISTRIBUTED  OR  TO BE
   38  DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
   39    (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND
   40  DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
   41  ARY THIRTY-FIRST, TWO THOUSAND FIFTEEN AND EVERY TWO  YEARS  THEREAFTER,
   42  THE INCOME CAP AMOUNT SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNU-
   43  AL  PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUM-
   44  ERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU
   45  OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE  NEAREST  ONE
   46  THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
   47  PUBLISH THE INCOME CAP.
   48    (5)  "GUIDELINE  AMOUNT  OF  POST-DIVORCE  MAINTENANCE" SHALL MEAN THE
   49  DOLLAR AMOUNT DERIVED BY THE APPLICATION OF PARAGRAPH C  OR  D  OF  THIS
   50  SUBDIVISION.
   51    (6)  "GUIDELINE  DURATION  OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
   52  DURATIONAL PERIOD DETERMINED BY THE APPLICATION OF PARAGRAPH E  OF  THIS
   53  SUBDIVISION.
   54    (7)  "POST-DIVORCE  MAINTENANCE  GUIDELINE  OBLIGATION" SHALL MEAN THE
   55  GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE  DURATION
   56  OF POST-DIVORCE MAINTENANCE.
       S. 2345                             8
    1    (8) LENGTH OF MARRIAGE SHALL MEAN THE PERIOD FROM THE DATE OF MARRIAGE
    2  UNTIL THE DATE OF COMMENCEMENT OF ACTION.
    3    (9)  "SELF-SUPPORT  RESERVE"  SHALL  MEAN  THE SELF-SUPPORT RESERVE AS
    4  DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN  SECTION  TWO
    5  HUNDRED  FORTY  OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
    6  FAMILY COURT ACT.
    7    C. WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME  CAP,
    8  THE  COURT  SHALL DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTE-
    9  NANCE AS FOLLOWS:
   10    (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
   11  THIRTY PERCENT OF THE PAYOR'S INCOME.
   12    (2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE  PAYOR'S  INCOME  AND
   13  THE PAYEE'S INCOME BY FORTY PERCENT.
   14    (3)  THE  COURT  SHALL  SUBTRACT  THE  PAYEE'S  INCOME FROM THE AMOUNT
   15  DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
   16    (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
   17  GRAPHS ONE AND THREE OF THIS PARAGRAPH.
   18    (5) THE GUIDELINE AMOUNT OF  POST-DIVORCE  MAINTENANCE  SHALL  BE  THE
   19  AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF
   20  THE  AMOUNT  DETERMINED  BY  SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS
   21  THAN OR EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE  MAINTENANCE
   22  SHALL BE ZERO DOLLARS.
   23    (6)  NOTWITHSTANDING  THE  PROVISIONS  OF  THIS SUBDIVISION, WHERE THE
   24  GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE WOULD  REDUCE  THE  PAYOR'S
   25  INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
   26  AMOUNT  OF  POST-DIVORCE MAINTENANCE SHALL BE THE DIFFERENCE BETWEEN THE
   27  PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE.  IF THE PAYOR'S  INCOME  IS
   28  BELOW  THE  SELF-SUPPORT RESERVE, THERE IS A REBUTTABLE PRESUMPTION THAT
   29  NO POST-DIVORCE MAINTENANCE IS AWARDED.
   30    D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP,  THE  COURT  SHALL
   31  DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AS FOLLOWS:
   32    (1)  THE  COURT  SHALL  PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
   33  GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
   34  INCOMES OF PAYOR AND PAYEE.
   35    (2) THE COURT SHALL PERFORM THE CALCULATIONS  SET  FORTH  IN  SUBPARA-
   36  GRAPHS  ONE  THROUGH  FOUR  OF  PARAGRAPH  C OF THIS SUBDIVISION FOR THE
   37  INCOME OF PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF
   38  PAYEE.
   39    (3) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE EITHER:
   40    (A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF  THIS  PARAGRAPH;
   41  OR
   42    (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
   43  AMOUNT  THAT  THE  COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
   44  SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH F OF THIS SUBDIVISION.
   45    (4) IN ANY DECISION MADE PURSUANT TO CLAUSE (B) OF SUBPARAGRAPH  THREE
   46  OF  THIS  PARAGRAPH, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED
   47  AND THE REASONS FOR ITS DECISION IN WRITING.  SUCH WRITTEN DECISION  MAY
   48  NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
   49    E.  THE GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE SHALL BE DETER-
   50  MINED AS FOLLOWS:
   51    (1) THE COURT SHALL DETERMINE THE GUIDELINE DURATION  OF  POST-DIVORCE
   52  MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:
   53       LENGTH OF THE MARRIAGE               % OF THE LENGTH OF THE MARRIAGE
   54                                                 FOR WHICH MAINTENANCE
   55                                                     WILL BE PAYABLE
   56       0 UP TO AND INCLUDING 5 YEARS                      30%
       S. 2345                             9
    1       MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS         40%
    2       MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS        50%
    3       MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS       60%
    4       MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS       70%
    5       MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS       80%
    6       MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS       90%
    7       MORE THAN 20, UP TO AND INCLUDING 25 YEARS        100%
    8       MORE THAN 25 YEARS                           NONDURATIONAL
    9    (2)  NOTWITHSTANDING  THE PROVISIONS OF SUBPARAGRAPH (1) OF THIS PARA-
   10  GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE  DEATH  OF  THE
   11  PAYOR OR PAYEE.
   12    F.  (1)  THE  COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE GUIDELINE
   13  OBLIGATION IN ACCORDANCE WITH PARAGRAPHS C, D AND E OF THIS SUBDIVISION,
   14  UNLESS THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
   15  GATION IS UNJUST OR INAPPROPRIATE AND ADJUSTS THE  POST-DIVORCE  MAINTE-
   16  NANCE  GUIDELINE  OBLIGATION ACCORDINGLY BASED UPON CONSIDERATION OF THE
   17  FOLLOWING FACTORS:
   18    (A) THE AGE AND HEALTH OF THE PARTIES;
   19    (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE  PARTIES,  INCLUDING
   20  THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
   21    (C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
   22    (D)  THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
   23  OR ENCUMBRANCES MADE IN CONTEMPLATION OF A  MATRIMONIAL  ACTION  WITHOUT
   24  FAIR CONSIDERATION;
   25    (E)  THE  EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
   26  PRE-DIVORCE SEPARATE HOUSEHOLD;
   27    (F) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR  CONTINUE
   28  TO  INHIBIT  A  PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
   29  EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO  ACTS  OF  DOMESTIC
   30  VIOLENCE  AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
   31  SERVICES LAW;
   32    (G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
   33    (H) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT  CHILDREN  OR
   34  STEPCHILDREN,  ELDERLY  PARENTS  OR IN-LAWS PROVIDED DURING THE MARRIAGE
   35  THAT INHIBITS A PARTY'S EARNING CAPACITY;
   36    (I) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE  CHILD
   37  OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
   38  TO  THE  CHILD  SUPPORT  STANDARDS  ACT,  INCLUDING, BUT NOT LIMITED TO,
   39  SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
   40    (J) THE TAX CONSEQUENCES TO EACH PARTY;
   41    (K) THE STANDARD OF LIVING  OF  THE  PARTIES  ESTABLISHED  DURING  THE
   42  MARRIAGE;
   43    (L)  THE  REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
   44  HAVING FOREGONE OR DELAYED EDUCATION,  TRAINING,  EMPLOYMENT  OR  CAREER
   45  OPPORTUNITIES DURING THE MARRIAGE;
   46    (M) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY;
   47    (N)  THE  CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
   48  WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL  OF  THE
   49  OTHER PARTY; AND
   50    (O)  ANY  OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
   51  AND PROPER.
   52    (2) WHERE THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE  GUIDELINE
   53  OBLIGATION IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE POST-DI-
   54  VORCE  MAINTENANCE  GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE
   55  COURT SHALL SET FORTH, IN A WRITTEN DECISION,  THE  UNADJUSTED  POST-DI-
   56  VORCE  MAINTENANCE  GUIDELINE OBLIGATION, THE FACTORS IT CONSIDERED, AND
       S. 2345                            10
    1  THE REASONS THAT THE COURT ADJUSTED THE POST-DIVORCE  MAINTENANCE  OBLI-
    2  GATION.  SUCH  WRITTEN  DECISION  SHALL NOT BE WAIVED BY EITHER PARTY OR
    3  COUNSEL.
    4    G. WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT
    5  ENTER  A  MAINTENANCE  ORDER  OR  JUDGMENT  UNLESS THE COURT INFORMS THE
    6  UNREPRESENTED PARTY OR PARTIES OF THE POST-DIVORCE MAINTENANCE GUIDELINE
    7  OBLIGATION.
    8    H. A VALIDLY EXECUTED AGREEMENT  OR  STIPULATION  VOLUNTARILY  ENTERED
    9  INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE
   10  OF  THE  CHAPTER  OF THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS
   11  SUBDIVISION PRESENTED TO THE COURT FOR  INCORPORATION  IN  AN  ORDER  OR
   12  JUDGMENT  SHALL  INCLUDE  A PROVISION STATING THAT THE PARTIES HAVE BEEN
   13  ADVISED OF THE PROVISIONS OF THIS SUBDIVISION, AND THAT THE POST-DIVORCE
   14  MAINTENANCE GUIDELINE OBLIGATION PROVIDED FOR THEREIN WOULD PRESUMPTIVE-
   15  LY RESULT IN THE CORRECT AMOUNT OF POST-DIVORCE  MAINTENANCE.    IN  THE
   16  EVENT  THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE
   17  MAINTENANCE GUIDELINE OBLIGATION,  THE  AGREEMENT  OR  STIPULATION  MUST
   18  SPECIFY  THE  AMOUNT  THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
   19  GATION WOULD HAVE BEEN AND THE REASON OR REASONS THAT SUCH AGREEMENT  OR
   20  STIPULATION  DOES NOT PROVIDE FOR PAYMENT OF THAT AMOUNT. SUCH PROVISION
   21  MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL. NOTHING CONTAINED IN  THIS
   22  SUBDIVISION  SHALL  BE  CONSTRUED  TO ALTER THE RIGHTS OF THE PARTIES TO
   23  VOLUNTARILY ENTER INTO VALIDLY EXECUTED AGREEMENTS OR STIPULATIONS WHICH
   24  DEVIATE FROM THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION  PROVIDED
   25  SUCH  AGREEMENTS  OR  STIPULATIONS  COMPLY  WITH  THE PROVISIONS OF THIS
   26  SUBDIVISION.  ANY COURT ORDER INCORPORATING A VALIDLY EXECUTED AGREEMENT
   27  OR STIPULATION WHICH DEVIATES FROM THE POST-DIVORCE  MAINTENANCE  GUIDE-
   28  LINE OBLIGATION SHALL SET FORTH THE COURT'S REASONS FOR SUCH DEVIATION.
   29    I.  WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
   30  WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE  COURT  SHALL  ORDER
   31  THE  POST-DIVORCE  MAINTENANCE  BASED UPON THE NEEDS OF THE PAYEE OR THE
   32  STANDARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF  THE  DIVORCE
   33  ACTION,  WHICHEVER IS GREATER.  SUCH ORDER MAY BE RETROACTIVELY MODIFIED
   34  UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON  A  SHOWING  OF
   35  NEWLY DISCOVERED OR OBTAINED EVIDENCE.
   36    J. POST-DIVORCE MAINTENANCE MAY BE MODIFIED PURSUANT TO PARAGRAPH B OF
   37  SUBDIVISION NINE OF THIS PART.
   38    K. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
   39  NANCE  OR  ALIMONY  EXISTING PRIOR TO THE EFFECTIVE DATE OF A CHAPTER OF
   40  THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SUBDIVISION, BROUGHT
   41  PURSUANT TO THIS ARTICLE, THE GUIDELINES  FOR  POST-DIVORCE  MAINTENANCE
   42  SET  FORTH  IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF CIRCUM-
   43  STANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
   44    L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
   45  NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF  A  CHAPTER  OF
   46  THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SUBDIVISION, BROUGHT
   47  PURSUANT  TO  THIS  ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAINTENANCE
   48  SET FORTH IN PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL APPLY.
   49    M. IN ANY DECISION MADE PURSUANT TO THIS SUBDIVISION THE COURT  SHALL,
   50  WHERE  APPROPRIATE,  CONSIDER  THE EFFECT OF A BARRIER TO REMARRIAGE, AS
   51  DEFINED IN SUBDIVISION SIX OF SECTION TWO HUNDRED  FIFTY-THREE  OF  THIS
   52  ARTICLE, ON THE FACTORS ENUMERATED IN PARAGRAPH F OF THIS SUBDIVISION.
   53    S  3.  Subparagraph  1  of  paragraph  b of subdivision 9 of part B of
   54  section 236 of the domestic relations law, as amended by chapter 182  of
   55  the laws of 2010, is amended to read as follows:
       S. 2345                            11
    1    (1)  Upon  application  by either party, the court may annul or modify
    2  any prior order or judgment as to maintenance, upon  a  showing  of  the
    3  [recipient's]  PAYEE'S inability to be self-supporting [or a substantial
    4  change in circumstance or], THE termination  of  child  support  awarded
    5  pursuant  to section two hundred forty of this article, OR A SUBSTANTIAL
    6  CHANGE IN CIRCUMSTANCES including financial hardship, REMARRIAGE OF  THE
    7  PAYEE  IF  THE  REMARRIAGE  RESULTS IN A SUBSTANTIAL CHANGE IN FINANCIAL
    8  CIRCUMSTANCES, AND ACTUAL RETIREMENT OF  THE  PAYOR  IF  THE  RETIREMENT
    9  RESULTS IN A SUBSTANTIAL CHANGE IN FINANCIAL CIRCUMSTANCES. Where, after
   10  the effective date of this part, a separation agreement remains in force
   11  no  modification of a prior order or judgment incorporating the terms of
   12  said agreement shall be made as to  maintenance  without  a  showing  of
   13  extreme  hardship  on either party, in which event the judgment or order
   14  as modified shall supersede the terms of the prior agreement  and  judg-
   15  ment  for  such period of time and under such circumstances as the court
   16  determines. The court shall not reduce or annul any arrears  of  mainte-
   17  nance  which have been reduced to final judgment pursuant to section two
   18  hundred forty-four of this article.  No  other  arrears  of  maintenance
   19  which  have  accrued  prior  to  the making of such application shall be
   20  subject to modification or annulment unless the defaulting  party  shows
   21  good  cause for failure to make application for relief from the judgment
   22  or order directing such payment prior to the accrual of such arrears and
   23  the facts and circumstances constituting good cause are set forth  in  a
   24  written  memorandum  of decision. Such modification may increase mainte-
   25  nance nunc pro tunc as of the date of application based on newly discov-
   26  ered evidence. Any retroactive amount of maintenance due  shall,  except
   27  as  provided  for  herein,  be  paid in one sum or periodic sums, as the
   28  court directs, taking into account any  temporary  or  partial  payments
   29  which have been made. The provisions of this subdivision shall not apply
   30  to a separation agreement made prior to the effective date of this part.
   31    S 4. Section 412 of the family court act, as amended by chapter 281 of
   32  the laws of 1980, is amended to read as follows:
   33    S 412. Married person's duty to support spouse. A. A married person is
   34  chargeable  with  the support of his or her spouse and, [if possessed of
   35  sufficient means or able to earn such means, may be required to pay  for
   36  his  or  her  support a fair and reasonable sum, as the court may deter-
   37  mine, having due regard to the circumstances of the respective parties.]
   38  EXCEPT WHERE THE PARTIES HAVE ENTERED  INTO  AN  AGREEMENT  PURSUANT  TO
   39  SECTION  FOUR HUNDRED TWENTY-FIVE OF THIS ARTICLE PROVIDING FOR SUPPORT,
   40  THE COURT SHALL MAKE ITS AWARD  FOR  SPOUSAL  SUPPORT  PURSUANT  TO  THE
   41  PROVISIONS OF THIS PART.
   42    B.  FOR  PURPOSES  OF THIS SECTION, THE FOLLOWING DEFINITIONS SHALL BE
   43  USED:
   44    (1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
   45    (2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
   46    (3) "INCOME" SHALL MEAN INCOME AS DEFINED IN THE CHILD SUPPORT  STAND-
   47  ARDS  ACT  AND  CODIFIED  IN  SECTION  TWO HUNDRED FORTY OF THE DOMESTIC
   48  RELATIONS LAW AND SECTION FOUR HUNDRED THIRTEEN OF THIS PART.
   49    (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING THREE HUNDRED THOUSAND
   50  DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
   51  ARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY TWO  YEARS  THEREAFTER,
   52  THE INCOME CAP AMOUNT SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNU-
   53  AL  PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUM-
   54  ERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU
   55  OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE  NEAREST  ONE
       S. 2345                            12
    1  THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
    2  PUBLISH THE INCOME CAP.
    3    (5)  "GUIDELINE  AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE SUM DERIVED
    4  BY THE APPLICATION OF SUBDIVISION C OR D OF THIS SECTION.
    5    (6) "SELF-SUPPORT RESERVE" SHALL  MEAN  THE  SELF-SUPPORT  RESERVE  AS
    6  DEFINED  IN  THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
    7  HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW  AND  SECTION  FOUR  HUNDRED
    8  THIRTEEN OF THIS PART.
    9    C.  WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
   10  THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT  OF  SPOUSAL  SUPPORT  AS
   11  FOLLOWS:
   12    (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
   13  THIRTY PERCENT OF THE PAYOR'S INCOME.
   14    (2)  THE  COURT  SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
   15  THE PAYEE'S INCOME BY FORTY PERCENT.
   16    (3) THE COURT SHALL  SUBTRACT  THE  PAYEE'S  INCOME  FROM  THE  AMOUNT
   17  DERIVED FROM PARAGRAPH TWO OF THIS SUBDIVISION.
   18    (4)  THE  COURT  SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY PARA-
   19  GRAPHS ONE AND THREE OF THIS SUBDIVISION.
   20    (5) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
   21  MINED BY PARAGRAPH FOUR OF THIS SUBDIVISION EXCEPT THAT, IF  THE  AMOUNT
   22  DETERMINED  BY  PARAGRAPH FOUR OF THIS SUBDIVISION IS LESS THAN OR EQUAL
   23  TO ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
   24    D. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP,  THE  COURT  SHALL
   25  DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS:
   26    (1)  THE  COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
   27  ONE THROUGH FOUR OF SUBDIVISION C OF THIS SECTION FOR THE TOTAL  INCOMES
   28  OF PAYOR AND PAYEE.
   29    (2)  THE  COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPHS
   30  ONE THROUGH FOUR OF SUBDIVISION C OF THIS  SECTION  FOR  THE  INCOME  OF
   31  PAYOR UP TO AND INCLUDING THE INCOME CAP AND FOR THE INCOME OF PAYEE.
   32    (3) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE EITHER:
   33    (A) THE CALCULATION DERIVED FROM PARAGRAPH ONE OF THIS SUBDIVISION; OR
   34    (B)  THE AMOUNT DERIVED FROM PARAGRAPH TWO OF THIS SUBDIVISION PLUS AN
   35  AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION  OF  THE  FACTORS
   36  SET FORTH IN PARAGRAPH ONE OF SUBDIVISION F OF THIS SECTION.
   37    (4)  IN  ANY  DECISION  MADE PURSUANT TO SUBPARAGRAPH (B) OF PARAGRAPH
   38  THREE OF THIS SUBDIVISION, THE COURT SHALL  SET  FORTH  THE  FACTORS  IT
   39  CONSIDERED  AND  THE  REASONS  FOR ITS DECISION IN WRITING. SUCH WRITTEN
   40  DECISION MAY NOT BE WAIVED BY EITHER PARTY OR COUNSEL.
   41    E. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WHERE THE GUIDELINE
   42  AMOUNT OF SPOUSAL SUPPORT WOULD REDUCE  THE  PAYOR'S  INCOME  BELOW  THE
   43  SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE AMOUNT OF SPOUS-
   44  AL  SUPPORT  SHALL  BE THE DIFFERENCE BETWEEN THE PAYOR'S INCOME AND THE
   45  SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS  BELOW  THE  SELF-SUPPORT
   46  RESERVE,  THERE  IS  A REBUTTABLE PRESUMPTION THAT NO SPOUSAL SUPPORT IS
   47  AWARDED.
   48    F. (1) THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF  SPOUSAL  SUPPORT
   49  IN  ACCORDANCE  WITH  SUBDIVISIONS  C  AND D OF THIS SECTION, UNLESS THE
   50  COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT  IS  UNJUST  OR
   51  INAPPROPRIATE  AND  ADJUSTS  THE  GUIDELINE  AMOUNT  OF  SPOUSAL SUPPORT
   52  ACCORDINGLY BASED UPON CONSIDERATION OF THE FOLLOWING FACTORS:
   53    (A) THE AGE AND HEALTH OF THE PARTIES;
   54    (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE  PARTIES,  INCLUDING
   55  THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
   56    (C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
       S. 2345                            13
    1    (D)  THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
    2  OR ENCUMBRANCES MADE IN CONTEMPLATION OF A  SUPPORT  PROCEEDING  WITHOUT
    3  FAIR CONSIDERATION;
    4    (E)  THE  EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
    5  PRE-SUPPORT PROCEEDINGS SEPARATE HOUSEHOLD;
    6    (F) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR  CONTINUE
    7  TO  INHIBIT  A  PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
    8  EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO  ACTS  OF  DOMESTIC
    9  VIOLENCE  AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
   10  SERVICES LAW;
   11    (G) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
   12    (H) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT  CHILDREN  OR
   13  STEPCHILDREN,  ELDERLY  PARENTS  OR IN-LAWS PROVIDED DURING THE MARRIAGE
   14  THAT INHIBITS A PARTY'S EARNING CAPACITY;
   15    (I) THE NEED TO PAY FOR EXCEPTIONAL ADDITIONAL EXPENSES FOR THE  CHILD
   16  OR CHILDREN NOT ALREADY CONSIDERED IN DETERMINING CHILD SUPPORT PURSUANT
   17  TO  THE  CHILD  SUPPORT  STANDARDS  ACT,  INCLUDING, BUT NOT LIMITED TO,
   18  SCHOOLING, DAY CARE AND MEDICAL TREATMENT;
   19    (J) THE TAX CONSEQUENCES TO EACH PARTY;
   20    (K) THE STANDARD OF LIVING  OF  THE  PARTIES  ESTABLISHED  DURING  THE
   21  MARRIAGE;
   22    (L)  THE  REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
   23  HAVING FOREGONE OR DELAYED EDUCATION,  TRAINING,  EMPLOYMENT  OR  CAREER
   24  OPPORTUNITIES DURING THE MARRIAGE;
   25    (M)  THE  CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
   26  WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL  OF  THE
   27  OTHER PARTY; AND
   28    (N)  ANY  OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
   29  AND PROPER.
   30    (2) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
   31  IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE GUIDELINE AMOUNT OF
   32  SPOUSAL SUPPORT PURSUANT TO THIS SUBDIVISION, THE COURT SHALL SET FORTH,
   33  IN A WRITTEN DECISION, THE GUIDELINE  AMOUNT  OF  SPOUSAL  SUPPORT,  THE
   34  FACTORS  IT  CONSIDERED,  AND  THE  REASONS  THAT THE COURT ADJUSTED THE
   35  GUIDELINE AMOUNT OF SPOUSAL SUPPORT. SUCH WRITTEN DECISION SHALL NOT  BE
   36  WAIVED BY EITHER PARTY OR COUNSEL.
   37    (3)  WHERE  EITHER  OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL
   38  NOT ENTER A SPOUSAL SUPPORT ORDER UNLESS THE COURT INFORMS THE  UNREPRE-
   39  SENTED PARTY OR PARTIES OF THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT.
   40    G.  WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
   41  WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE  COURT  SHALL  ORDER
   42  THE SPOUSAL SUPPORT AWARD BASED UPON THE NEEDS OF THE PAYEE OR THE STAN-
   43  DARD  OF  LIVING  OF  THE  PARTIES  PRIOR TO COMMENCEMENT OF THE SPOUSAL
   44  SUPPORT PROCEEDING, WHICHEVER IS GREATER.   SUCH ORDER MAY  BE  RETROAC-
   45  TIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUMSTANCES UPON
   46  A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
   47    H. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF SPOUSAL
   48  SUPPORT  EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS
   49  OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT  TO
   50  THIS  ARTICLE,  THE SPOUSAL SUPPORT GUIDELINES SET FORTH IN THIS SECTION
   51  SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES  WARRANTING  MODIFICATION
   52  OF SUCH SPOUSAL SUPPORT ORDER.
   53    S  5.  Paragraph  a  of  subdivision 1 of part B of section 236 of the
   54  domestic relations law, as amended by chapter 371 of the laws  of  2010,
   55  is amended to read as follows:
       S. 2345                            14
    1    a.  The term "maintenance" shall mean payments provided for in a valid
    2  agreement between the parties or awarded by the court in accordance with
    3  the provisions of subdivisions five-a and six of this part, to  be  paid
    4  at  fixed  intervals for a definite or indefinite period of time, but an
    5  award  of maintenance shall terminate upon the death of either party [or
    6  upon the recipient's valid or invalid marriage,]  or  upon  modification
    7  pursuant  to  paragraph  [(b)]  B  of  subdivision  nine [of section two
    8  hundred thirty-six] of this part [or section two hundred forty-eight  of
    9  this chapter].
   10    S  6.  Subparagraph  7  of  paragraph  d of subdivision 5 of part B of
   11  section 236 of the domestic relations law, as amended by chapter 281  of
   12  the  laws  of 1980 and as renumbered by chapter 229 of the laws of 2009,
   13  is amended to read as follows:
   14    (7) any equitable  claim  to,  interest  in,  or  direct  or  indirect
   15  contribution  made  to  the  acquisition of such marital property by the
   16  party not having title, including  joint  efforts  or  expenditures  and
   17  contributions and services as a spouse, parent, wage earner and homemak-
   18  er,  and to the career or career potential of the other party. THE COURT
   19  SHALL NOT CONSIDER AS MARITAL PROPERTY SUBJECT TO DISTRIBUTION THE VALUE
   20  OF A SPOUSE'S ENHANCED EARNING CAPACITY ARISING FROM A LICENSE,  DEGREE,
   21  CELEBRITY  GOODWILL,  OR  CAREER ENHANCEMENT. HOWEVER, IN ARRIVING AT AN
   22  EQUITABLE DIVISION OF MARITAL PROPERTY, THE  COURT  SHALL  CONSIDER  THE
   23  DIRECT  OR INDIRECT CONTRIBUTIONS TO THE DEVELOPMENT DURING THE MARRIAGE
   24  OF THE ENHANCED EARNING CAPACITY OF THE OTHER SPOUSE;
   25    S 7. Section 248 of the domestic relations law is REPEALED.
   26    S 8. This act shall take effect on the sixtieth  day  after  it  shall
   27  have become a law.