Marital and Separate Property

Written by Alex Roshuk
- Comments Off on Marital and Separate Property

On August 15, 2010 Governor Paterson announced that he had signed several bills significantly reforming New York State’s Domestic Relations Law. The first bill, A.9753A/S.3890 creates a “non-consensual” “no-fault” grounds for divorce. New York has long had “no fault” by consent, where both spouses agree by contract to get divorced and must wait a year after the contract is executed to apply for a divorce under D.R.L. sec. 170(6) commonly called a conversion divorce. This new law adds a subsection to D.R.L. Sec. 170(7) which states, (in part) that the Supreme Court can grant a divorce when: “The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.” The law goes into effect 60 days after the date the governor signed it (October 12, 2010) and only applies to those actions for divorce started on that day or later. The new law also states that no divorce will be granted under the new grounds “unless and until” the economic issues of equitable distribution of marital property, payment or waiver of spousal support, child support, counsel, expert fees and expenses and custody and visitation of children has been resolved between the parties or determined by the Court and incorporated into the judgment of divorce.

The other laws signed by the Governor amend the divorce law to strengthen a party’s ability to seek an award interim spousal support and attorney fees at the beginning of an action, rather than the end.  One law (A.10984/S.8390 and A11576/S.8391) creates a presumption that that will revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that presumptively governs such awards, a scheme similar to the Child Support Standards Act. This change should result in a speedy resolution of the maintenance issue once litigation has begun and prevent a less well-off party in to divorce proceedings from falling into poverty during litigation because they lack the resources to obtain a temporary maintenance order. For situations where one spouse makes $500,000 or less (subject to annual COLA adjustments) the formula is basically the lower of two amounts, (A) thirty percent of the payor minus twenty percent of the potential payee spouse or (B) forty percent of the sum of both spouses income minus the payee spouse’s income. If A-B is zero or less, interim maintenance shall be zero. The court may deviate from this formula and, as in the Child Support Standards Act, the “self support reserve” is the lower level cutoff factor for the payor’s resultant net income after maintenance is deducted.

The final law (A7569-A/S4532-A) creates a presumption that the spouse with less money in a divorce case is entitled to payment of attorneys’ fees at the beginning of litigation. Under current law, a party that cannot afford to secure representation in a divorce proceeding is often forced to make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to not fight for their rights due to lack of means or legal support as many lawyers are not willing to wait to receive their legal fees after years of litigation.

Comments are closed.

Copyright © 2016