Recent Legislation and Court Rules
Appellate Division Revises Statement of Client Rights
A Joint Order of the Departments of the New York State Supreme Court, Appellate Division adopted a Revised Form of Statement of Client’s Rights and Responsibilities pursuant to 22 NYCRR 1400.2, effective February 15, 2019.
Laws of 2018, Ch 516 - CPLR 4511(c) - Judicial notice of Google Maps.
Laws of 2018, Ch 516 amended CPLR 4511, effective December 28, 2018, to insert subdivision (c) which provides for a rebuttable presumption of judicial notice of web mapping or global imaging websites such as Google Maps. Every court must take judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption that such image, map, location, distance, calculation, or other information fairly and accurately depicts the evidence presented. The presumption may be rebutted by credible and reliable evidence that the image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool does not fairly and accurately portray that which it is being offered to prove. A party intending to offer the image or information at a trial or hearing must, at least 30 days before the trial or hearing, give notice of such intent, providing a copy or specifying the internet address at which the image or information may be inspected. No later than 10 days before the trial or hearing, a party upon whom the notice is served may object to the request for judicial notice of such image or information, stating the grounds for the objection. Unless objection is made pursuant to this provision, or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required by this provision, the court must take judicial notice of the image or information. Former subdivisions (c) and (d) were renumbered as (d) and (e).
Laws of 2018, Ch 415 - Domestic Relations Law §11.
Domestic Relations Law §11 was amended effective December 21, 2018, by adding a new subdivision 2-a which adds to the list of those persons who may solemnize a marriage, a member of the New York state legislature, provided that he or she does not charge or receive a fee.
Laws of 2018, Chapter 362
Laws of 2018, Ch 362 amended amend Articles seven and ten of the Family Court Act with regard to PINS and child protective proceedings involving truancy allegations. The Chapter:
Amended Family Court Act § 735 to require designated lead PINS diversion agencies to review and document efforts by school districts to resolve truancy or school misbehavior in all PINS proceedings containing such allegations regardless of the potential petitioner
Amended Family Court Act § 736 to require that the school district or local educational agency be notified of the court proceeding and be allowed to participate and provide assistance where the court determines that such participation and /or assistance would aid in the resolution of the petition.
Amended Family Court Act § 742 of the Family Court Act to permit the court
to refer PINS proceedings to diversion agencies at any stage in the proceeding. To minimize the unnecessary filing of educational neglect petitions against parents, the amendment adds provisions that, in effect, establish a rebuttable presumption in favor of diversion.
Amended the definition of educational neglect in Family Court Act § 1012(f) to require proof of parental failure to provide educational services to a child "notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition," thus making failure to resolve educational problems through diversion a prerequisite to filing.
Amended Family Court Act § 1031 to require that these efforts be recited in the petition, along with "the grounds for concluding that the education-related allegations could not be resolved absent the filing of a petition."
Amended Family Court Act § 1035 to authorize Family Court to notify the school district or local educational agency and to allow their participation where the court determines that such participation and /or assistance would aid in the resolution of the petition. (See 2018 NY Legis Memo 362)
Laws of 2018, Ch 60 - Family Court Act 842-a
Laws of 2018, Ch 60, § 5, amended Section 842–a of the family court act
to add rifles and shotguns to the list of weapons whose licenses may be suspended or revoked upon the issuance of a temporary order of protection or order of protection and to provide that upon the termination of any suspension order issued pursuant to this section, any court of record exercising criminal jurisdiction may order the return of a firearm, rifle or shotgun pursuant to paragraph b of subdivision five of section 530.14 of the criminal procedure law.
Laws of 2018, Ch 55 - Family Court Act §821(1)(a)
Family Court Act §821 (1)(a) was amended to add coercion in the third degree to the list of crimes that constitute a family offense.
Laws of 2018, Chapter 218, Amended CPLR 2305
Chapter 218 amended CPLR 2305, effective August 24, 2018 to add a new subdivision (d) which gives counsel the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. Existing subdivision 2 provides: “Any person may comply with a subpoena duces tecum for a trial, hearing or examination by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.”
CPLR 2305(d) provides as follows:
(d) Subpoena duces tecum for a trial; service of subpoena and delivery for records. Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith.
The amendment was effective immediately and applies to all actions
pending on or after such effective date.
Laws of 2018, Chapter 217 added CPLR 4540-a
Chapter 217 added CPLR 4540-a effective January 1, 2019 to eliminate the authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial disclosure.
According to the Legislative memorandum in support of the legislation the genuineness of a document or other physical object must be established as a prerequisite to its admissibility when the relevance of the item depends upon its source or origin. But evidence of such authenticity should not be required if the party who purportedly authored or otherwise created the documents at issue has already admitted their authenticity. And if a party has responded to a pretrial litigation demand for its documents by producing those documents, the party has implicitly acknowledged their authenticity. Thus, in such cases, the presentation of evidence of authenticity is a waste of the court's time and an unnecessary burden on the proponent of the evidence.
New CPLR 4540-a creates a rebuttable presumption that material produced by a party in response to a demand pursuant to article thirty- one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. The presumption recognized by the statute applies only to the issue of authenticity or genuineness of the item. A party is free to assert any and all other objections that might be pertinent in the case, such as lack of relevance or violation of the best evidence rule. The Legislative memorandum noted that the adoption of the proposed new CPLR 4540-a would not preclude establishing authenticity by any other statutory or common law means. See CPLR 4543 ("Nothing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the
rules of evidence at common law.").
CPLR 4540-a, effective January 1, 2019 reads as follows:
Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party. Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an
adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.
Laws of 2018, Chapter 235 adds new privileged communications
Chapter 235 amended judiciary law section 498, effective August 24, 2018 by renumbering subdivision 2 as subdivision 3 and adding a new subdivision 2 that deems communications between a consumer of legal services and a legal or lawyer referral service to be privileged, similar to the attorney-client privilege.
Judiciary Law §498, new subdivision 2 reads as follows:
2. The communications between a member or authorized agent of an association or society of attorneys or counselors at law and any person, persons or entity communicating with such member or authorized agent for the purpose of seeking or obtaining a professional referral shall be deemed to be privileged on the same basis as the privilege provided by law for communications between attorney and client. Such privilege may be waived only by the person, persons or entity who has furnished information to the association or society, its members or authorized agents.
Family Court Act §812 (1) amended
The opening paragraph of Family Court Act §812 (1) has been amended to add coercion in the third degree as one of the crimes that constitutes a family offense. In now reads as follows:
The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree, coercion in the second degree or coercion in the third degree as set forth in subdivisions one, two and three of section 135.60 of the penal law between spouses or former spouses, or between parent and child
or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing. For purposes of this article, “disorderly conduct” includes disorderly conduct not in a public place. For purposes of this article, "members of the same family or household" shall mean the following:
Laws of 2018, Ch 55, Part NN, §5, Effective as provided in § 10 on November 1, 2018.
Laws of 2017, Ch 35 amended the Domestic Relations Law to prohibit marriage of minors under seventeen years of age and amended the process to obtain court approval for marriage of persons at least seventeen years of age but under eighteen years of age.
Domestic Relations Law § 15-a was amended to increase the age of minors who are prohibited from marrying to under seventeen years of age. Previously minors under fourteen years of age were prohibited from marrying.
Domestic Relations Law § 13-b was amended to allow the solemnization of marriage of a party to be married to who is at least seventeen years upon the Court making written affirmative findings required under Domestic Relations Law § 15, subdivision 3. Formerly, the court could allow the solemnization of marriage by minor under sixteen years of age but over fourteen years of age.
Domestic Relations Law §15, subdivisions 1(a), 2 and 3 were amended to require the town or city clerk to require each applicant for a marriage license to present documentary proof of age. In cases where it appears that either party is at least seventeen years of age but under eighteen years of age the process by which the written approval of a justice of the supreme court or a judge of the family court was obtained was amended to provide for, among other things: (i) the appointment of an attorney for the child for each minor party which attorney must have received training in domestic violence including a component on forced marriage; and (ii) prior to the justice of the supreme court or the judge of the family court issuing approval, the justice or judge must (1) provide notification to each minor party of his or her rights, including but not limited to, in relation to termination of the marriage, child and spousal support, domestic violence services and access to public benefits and other services (2) conduct, with respect to each party, including a minor party, a review of related decisions in court proceedings initiated pursuant to article ten of the family court act, and all warrants issued under the family court act, reports of the statewide computerized registry of orders of protection under section two hundred twenty-one-a of the executive law, and reports of the sex offender registry under section one hundred sixty-eight-b of the correction law, and (3) hold an in camera interview, separately with each minor party, and make written affirmative findings specified in subdivision 3, taking into consideration, among other relevant factors, the factors set forth in subdivision 3. The wishes of the parents or legal guardians of the minor intending to be married shall not be the sole basis for consent or approval under this subdivision.
According to the Sponsor’s memorandum in support of this legislation parents force their children into marriages, citing reasons such as protecting "family honor," controlling the child's behavior and/or sexuality, and enhancing the family's status. Such reasons are reminiscent of the reasons for allowing girls age fourteen and over but under age sixteen to marry with court approval in 1929. The occurrence of child marriage is not limited to a particular culture or religion, but is widespread in the United States. Child marriage or forced marriage, or both, occur in families across faiths, including Muslim, Christian, Hindu, Buddhist, Sikh, Orthodox Jew, Mormon and Unification Church. Tactics such as threats of ostracism, beatings or death are used to force children to marry against their will. Under the Penal Law, a child under 17 does not have the capacity to consent to sex. It is statutory rape for an adult to have sex with a 16-year old but if he is married to her he can force her to have non-consensual sex as often as he likes. Marriage at any age before 18, undermines girls' health, education and economic opportunities, and increases their likelihood of experiencing violence. As a matter of public policy, no parent or court should be permitted to bind a child under the age of seventeen to a contract where the child lacks the capacity as well as the opportunity to consent. This legislation is intended to strengthen the process as applied to marriage of persons at least seventeen but under eighteen years of age. See 2017 NY Legis Memo 35.
Chief Administrative Judge Adopts New Rules for Matrimonial Actions
By Administrative Order A/O/100/17, 22 NYCRR §202.50 (b) was amended to add a new section 202.50 (b)(3).
The new section requires that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought. 22 NYCRR §202.50 (b)(3), which is effective August 1, 2017, provides as follows:
202.50. Proposed Judgments in Matrimonial Actions; Forms
* * *
(b) Approved Forms.
* * *
(3) Additional Requirement with Respect to Uncontested and Contested Judgments of Divorce. In addition to satisfying the requirements of paragraphs (1) and (2) of this subdivision, every judgment of divorce, whether uncontested or contested, shall include language substantially in accordance with the following decretal paragraphs which shall supersede any inconsistent decretal paragraphs currently required for such forms:
ORDERED AND ADJUDGED that the Settlement Agreement entered into between the parties on the ___ day of ____, [ ] an original OR [ ] a transcript of which is on file with this Court and incorporated herein by reference, shall survive and shall not be merged into this judgment, * and the parties are hereby directed to comply with all legally enforceable terms and conditions of said agreement as if such terms and conditions were set forth in their entirety herein; and it is further
* In contested actions, this paragraph may read either [shall survive and shall not be merged into this judgment] or [shall not survive and shall be merged into this judgment].
ORDERED AND ADJUDGED, that the Supreme Court shall retain jurisdiction to hear any applications to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment, provided the court retains jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing, such of the provisions of that (separation agreement) (stipulation agreement) as are capable of specific enforcement, to the extent permitted by law, and of modifying such judgment with respect to maintenance, support, custody or visitation to the extent permitted by law, or both; and it is further
ORDERED AND ADJUDGED, that any applications brought in Supreme Court to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment shall be brought in a County wherein one of the parties resides; provided that if there are minor children of the marriage, such applications shall be brought in a county wherein one of the parties or the child or children reside, except. in the discretion of the judge, for good cause. Good cause applications shall be made by motion or order to show cause. Where the address of either party and any child or children is unknown and not a matter of public record, or is subject to an existing confidentiality order pursuant to DRL § 254 or FCA § 154-b, such applications may be brought in the county where the judgment was entered;
and it is further
By Administrative Order A/O/99/17, 22 NYCRR §202 was amended to add a new section 202.16-b.The new section addresses the submission of written applications in contested
The new rules contain limitations which are applicable to to the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless the requirements are waived by the judge for good cause shown. Among other things, all orders to show cause and motions must be in Times New Roman, font 12 and double spaced. The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law may not exceed twenty (20) pages. Any expert affidavit may not exceed eight (8) additional pages. Reply affidavits or affirmations may not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission. 22 NYCRR 202.16 - b, which is effective July 1, 2017, provides as follows:
§202.16-b Submission of Written Applications in Contested Matrimonial Actions.
(1) Applicability. This section shall be applicable to all contested
matrimonial actions and proceedings in Supreme Court authorized by subdivision (2) of Part B of section 236 of the Domestic Relations Law.
(2) Unless otherwise expressly provided by any provision of the CPLR or other statute, and in addition to the requirements of 22 NYCRR §202.16 (k) where applicable, the following rules and limitations are required for the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless said requirements are waived by the judge for good cause
(i) Applications that are deemed an emergency must comply with 22 NYCRR §202.7 and provide for notice, where applicable, in accordance with same. These emergency applications shall receive a preference by the clerk for processing and the court for signature. Designating an application as an emergency without good cause may be punishable by the issuance of
sanctions pursuant to Part 130 of the Rules of the Chief Administrative Judge. Any application designated as an emergency without good cause shall be processed and considered in the ordinary course of local court procedures.
(ii) Where practicable. all orders to show cause, motions or cross motions for relief should be made in one order to show cause or motion or cross-motion.
(iii) All orders to show cause and motions or cross motions shall be submitted on one-sided copy except as otherwise provided in 22 NYCRR §202.5(at or electronically where authorized, with one-inch margins on eight and one half by eleven (8.5 x 11) inch paper with all additional exhibits tabbed. They shall be in Times New Roman font 12 and double spaced. They must be of sufficient quality ink to allow for the reading and proper scanning of the documents. Self-represented litigants may submit handwritten applications provided that the handwriting is legible and otherwise in conformity with these rules.
(iv) The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law shall not exceed twenty (20) pages. Any expert affidavit required shall not exceed eight (8) additional pages. Any attorney affirmation in support or opposition or
memorandum of law shall contain only discussion and argument on issues of law except for facts known only to the attorney. Any reply affidavits or affirmations to the extent permitted shall not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission.
(v) Except for affidavits of net worth (pursuant to 22 NYCRR §202.16 (b)), retainer agreements (pursuant to Rule 1400.3 of the Joint Rules of the Appellate Division). maintenance guidelines worksheets and/or child support worksheets, or counsel fee billing statements or affirmations or
affidavits related to counsel fees (pursuant to Domestic Relations Law §237 and 22 NYCRR §202.16(k))' all of which may include attachments thereto,all exhibits annexed to any motion, cross motion, order to show cause, opposition or reply may not be greater than three (3) inches thick without prior permission of the court. All exhibits must contain exhibit tabs.
(vi) If the application or responsive papers exceed the page or size limitation provided in this section, counsel or the self-represented litigant must certify in good faith the need to exceed such limitation, and the court may reject or require revision of the application if the court deems the reasons insufficient.
(3) Nothing contained herein shall prevent a judge or justice of the court or of a judicial district within which the court sits from establishing local part rules to the contrary or in addition to these rules.
By Administrative Order A/O 102/17, the Uncontested Divorce Packet Forms were modified to reflect the increases as of March 1, 2017 in the Self Support Reserve to $16,281 and in the Poverty Level Income for a single person to $12,060.
Domestic Relations Law § 245 amended effective September 29, 2016
Domestic Relations Law § 245, which authorizes the remedy of contempt, pursuant to Judiciary Law §756 et.seq., to enforce a judgment or order for the payment of a sum of money awarded in a matrimonial action, was amended to allow an application for contempt to be made without any prior application for enforcement by any other means. The amendment eliminates the requirement of demonstrating presumptively, to the satisfaction of the court, in the order to show cause bringing on the application, that payment cannot be enforced pursuant to DRL§ 243, DRL§ 244, CPLR 5241 or CPLR 5242.
Domestic Relations Law § 245, as amended, provides:
§ 245. Enforcement by contempt proceedings of judgment or order in action for divorce, separation or annulment. Where a spouse, in an action for divorce, separation, annulment or declaration of nullity of a void marriage, or for the enforcement in this state of a judgment for divorce, separation, annulment or declaration of nullity of a void marriage rendered in another state, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the aggrieved spouse may make application pursuant to the provisions of section seven hundred fifty-six of the judiciary law to punish the defaulting spouse for contempt, and where the judgment or order directs the payment to be made in installments, or at stated intervals, failure to make such single payment or installment may be punished as therein provided, and such punishment, either by fine or commitment, shall not be a bar to a subsequent proceeding to punish the defaulting spouse as for a contempt for failure to pay subsequent installments, but for such purpose such spouse may be proceeded against under the said order in the same manner and with the same effect as though such installment payment was directed to be paid by a separate and distinct order, and the provisions of the civil rights law are hereby superseded so far as they are in conflict therewith. Such application may also be made without any previous sequestration or direction to give security or any application for enforcement by any other means. No demand of any kind upon the defaulting spouse shall be necessary in order that he or she be proceeded against and punished for failure to make any such payment or to pay any such installment; personal service upon the defaulting spouse of an uncertified copy of the judgment or order under which the default has occurred shall be sufficient. (Laws of 2016, Ch 345, § 1, enacted September 29, 2016, and effective immediately as provided in §2.)
Prior to the amendment the applicant had to establish presumptively in the affidavit in support of the application that payment could not be enforced pursuant to DRL§ 243, DRL§ 244, CPLR 5241 or CPLR 5242. or that these remedies would be ineffectual.
Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Child Support Convention) Ratified.
On August 30, 2016 President Obama signed the Instrument of Ratification for the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Child Support Convention). This is the first global child support treaty ratified by the United States.
Laws of 2015, Chapter 572 amended CPLR 2103 effective January 1, 2016.
CPLR 2103(b)(2) was amended to provide that where a period of time prescribed by law is measured from the service of a paper and service is made by mail outside of the state of New York, but within the geographic boundries of the United States, six days shall be added to the prescribed period. The definition of mailing in CPLR 2103(f)(1) was amended to authorize mailing in the United States, rather than the state of New York.
The purpose of the amendment was so that the rule for mailing service would correspond with that for overnight delivery service in CPLR 2103(b)(6). The Sponsors memorandum in support of the legislation also noted a decision by the Appellate Division, First Department, holding the service by mail made outside the State was insufficient (M. Entertainment, Inc. v. Leydier, 62 A.D.3d 627 (reversed on other grounds, 13 N.Y.3d 827). The amendment authorizes service by mail outside the state, but within the geographical boundries of the United States.
Laws of 2015, Chapter 567 (effective June 18, 2016)
Domestic Relations Law§ 240, subdivision 1 (a) was amended and subdivision (c-1) was added to Family Court Act § 651 (c-1). The purpose of the legislation was to underscore that custody standards apply in cases where custody and visitation petitions brought under these sections are heard jointly with child protective dispositional or permanency hearings in Family Court under Article 10 or 10-A of the Family Court Act.
The following provision was inserted into Domestic Relations Law§ 240 subdivision 1 (a):
Where a proceeding filed pursuant to article ten or ten-A of the family court act is pending at the same time as a proceeding brought in the supreme court involving the custody of, or right to visitation with, any child of a marriage, the court presiding over the proceeding under article ten or ten-A of the family court act may jointly hear the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of the family court act and, upon referral from the supreme court, the hearing to resolve the matter of custody or visitation in the proceeding pending in the supreme court; provided however, the court must determine custody or visitation in accordance with the terms of this section.
The following provision was added to Family Court Act §651:
(c–1) Where a proceeding filed pursuant to article ten or ten-A of this act is pending at the same time as a proceeding brought in the family court pursuant to this article, the court presiding over the proceeding under article ten or ten-A of this act may jointly hear the hearing on the custody and visitation petition under this article and the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of this act; provided, however, the court must determine the custody and visitation petition in accordance with the terms of this article.
Laws of 2015, Ch 447
Laws of 2015, Ch 447 amended Domestic Relations Law §237 (a) effective November 20, 2015, and applicable to all actions whenever commenced, to provide that an unrepresented litigant shall not be required to file an affidavit detailing fee arrangements when making an application for an award of counsel fees and expenses. However, as a condition precedent to not being required to file such affidavit the unrepresented litigant must have submitted an affidavit that he or she is unable to afford counsel with supporting proof, including a statement of net worth, and, if available, W-2 statements and income tax returns for himself or herself.
According to the New York Assembly Memorandum in Support of the Legislation the purpose of the amendment was “to make clear that indigent pro se litigants may make an application for an award of fees necessary to obtain counsel without the formal requirement of an affidavit detailing fee arrangements with counsel, provided proof has been submitted of an inability to afford counsel.”
New Temporary Maintenance Guidelines Apply Only to Actions Commenced on or after October 25, 2015
The new temporary maintenance guidelines apply in matrimonial actions commencement on or after October 25, 2015. Click on the following links to go to the New temporary maintenance calculator worksheet and calculator which appear on the New York Court System website.
See Laws of 2015, Ch 269, which provides that section three of the act, which amended Domestic Relations Law 235[B][5-a] dealing with Temporary Maintenance Awards, “ shall take effect on the thirtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date.” The other sections of the Act are effective January 23, 2016.
Click on this link for the Temporary Maintenance Calculator Worksheet for Use in Actions Commenced before October 25, 2015
Laws of 2015, Ch 387, approved October 26, 2015, effective January 24, 2016.
The statutory provisions for child support have been amended to reflect the fact that spousal maintenance is money no longer available as income to the payor, but constitutes income to the payee, so long as the order or agreement for such maintenance lasts.
Domestic Relations Law § 240(1-b)(5)(iii) and Family Court Act § 413(1)(b)(5)(iii) were amended to add a new subclause (I) to each that requires that alimony or spousal maintenance actually paid to a spouse who is a party to the action must be added to the recipient spouse's income, provided that the order contains an automatic adjustment to take effect upon the termination of the maintenance award. According to the New York Assembly Memorandum in Support of Legislation this addition would be based upon an amount already paid, e.g., an amount reported on the recipient spouse's last income tax return, and would not simply be an estimate of future payments.
Domestic Relations Law § 240(1-b)(5)(vii)(C) and Family Court Act § 413(1)(b)(5)(vii)(C) were amended to clarify that, where spousal maintenance payments are deducted from the payor's income, the order must contain a specific provision adjusting the child support amount automatically upon the termination of the spousal maintenance award. According to the New York Assembly Memorandum in Support of Legislation this relieves the custodial parent of the burden of moving for a modification of the child support order upon the termination of maintenance but leaves open the possibility for either or both parties to seek a modification of the automatic adjustment if, at the point where maintenance terminates, the income of either of the parties has changed in an amount that would qualify for modification under Family Court Act § 451(3)(b)(ii) or Domestic Relations Law § 236B(9)(b)(2)(ii), e.g., in excess of 15% or a lapse of three years or more. The specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with Family Court Act § 451(3) or Domestic Relations Law § 236B(9)(b)(2) with the proviso that in a subsequent action for modification, the inclusion of the specific adjustment shall not by itself constitute a "substantial change of circumstances."
Laws of 2015, Ch 347, § 1 amended Social Services Law § 111-i to align the timing of the adjustment of the Combined Parental Income Adjustment with the adjustment of the poverty income guidelines amount for a single person and the self-support reserve.
Laws of 2015, Ch 369
Laws of 2015, Ch 369, § 2 repealed Article 5-B of the Family Court Act and enacted the 2008 version of the Uniform Interstate Family Support Act (UIFSA) as a new Article 5-B of the Family Court Act. Chapter 369 was signed into law on September 25, 2015. Section 1 is effective on December 24, 2015. New Article 5-B to the Family Court Act applies to any action or proceeding filed or order issued on or before the effective date of new Article 5-B, consistent with new section 580-903 of the Family Court Act which shall be effective on January 1, 2016.
Laws of 2015, Ch 269
Laws of 2015, Ch 269 amended Domestic Relations Law §236 [B][a], Domestic Relations Law §236 [B][d], Domestic Relations Law §236 [B], Domestic Relations Law § 248, Domestic Relations Law §236 [B], Family Court Act § 412, effective January 23, 2016, and amended Domestic Relations Law § 236 [B][5-a], effective October 25, 2015.
[Click for a Commentary on the Amendments]
Summary of the Amendments
The amendments eliminated “enhanced earning capacity as a marital asset” for purposes of equitable distribution (Domestic Relations Law §236 [B]  [d] ) but did not eliminate as a factor the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse. They adopted mandatory guidelines with formulas for the calculation of maintenance and spousal support awards, (Domestic Relations Law §236 [B]  and Family Court Act § 412), added actual or partial retirement as a ground for modification of post-divorce maintenance where it results in a substantial diminution of income. (Domestic Relations Law §236 [B]  ) and made Domestic Relations Law § 248 gender neutral.
Income Cap Lowered
The amendments lowered the income cap for the formula portion of temporary maintenance awards, (Domestic Relations Law § 236 [B] [5-a]) from the current $543,000 to $175,000 of the payor's income.
An income cap of $175,000 cap applies to post-divorce maintenance awards and spousal support awards.
There is a new formula for determining temporary maintenance.
In determining temporary maintenance, the court can allocate the responsibility for payment of specific family expenses between the parties.
The temporary maintenance award must terminate no later than the issuance of a judgment of divorce or the death of either party. This amendment is intended to clarify that the Supreme Court has the power to limit the duration of temporary maintenance.
New Formulas for Calculating Temporary Maintenance, Post-Divorce Maintenance and Spousal Support
There are now mandatory formulas for the calculation of maintenance and spousal support awards.
There are two formulas to be used in calculating maintenance and spousal support: one where child support will be paid and where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where it will be paid but the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is the custodial parent for child support purposes.
Those formulas are as follows:
a. With child support where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee's income from 20% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance;
b. Without child support, or with child support but where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee's income from 30% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
Post-Divorce Maintenance Guidelines
The definition of income for post-divorce maintenance includes income from income-producing property that is being equitably distributed.
Factors the court may consider in post-divorce maintenance now include termination of child support, and income or imputed income on assets being equitably distributed.
There is an “advisory” durational formula for determining the duration of post-divorce maintenance awards. However, nothing prevents the court from awarding non-durational, post-divorce maintenance in an appropriate case. In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age.
Modification of Post-Divorce Maintenance
Actual or partial retirement is a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income.
Spousal Support Guidelines for Family Court
Spousal support guidelines are established for Family Court using the same two formulas set forth for maintenance guidelines, as follows: one where child support will be paid and where the spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where child support will be paid but the spousal support payor is the custodial parent for child support purposes. The $175,000 income cap applies.
The court may adjust the guideline amount of spousal support up to the income cap where it finds that the guideline amount of spousal support is unjust or inappropriate after consideration of one or more factors, which shall be set forth in the court's written or on the record decision.
Where there is income over the cap, additional spousal support may be awarded after consideration of one or more factors, which shall be set forth in the court's written or on the record decision.
A new factor for the court to consider in spousal support awards as well as maintenance awards is termination of a child support award.
The Family Court may modify an order of spousal support upon a showing of a substantial change in circumstances. Unless so modified, spousal support orders set pursuant to the guidelines shall continue until the earliest to occur of a written or oral stipulation/agreement on the record, issuance of a judgment of divorce or other order in a matrimonial proceeding, or the death of either party. This is not intended to change current law with respect to Family Court's ability to terminate spousal support. (See NY Legis. Memo 237 (2015)).
The amendments become effective January 25, 2015 and apply to all matrimonial and Family Court actions for spousal support commenced on or after such effective date, including the provisions regarding post-divorce maintenance and spousal support awards. However, the provisions regarding temporary maintenance take effect October 25, 2015.