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City Bar Provides Recommendations to Law Revision Commission on Divorce Maintenance Laws

The New York City Bar Association has issued a report with three recommendations for consideration by the New York State Law Revision Commission as the Commission continues its analysis of New York’s divorce and maintenance laws pursuant to Chapter 371 of the 2010 Laws of New York. The report is the culmination of a lengthy collaborative process undertaken by four City Bar committees comprised of practitioners in matrimonial and family law – the Domestic Violence Committee, the Family Court and Family Law Committee, the Matrimonial Law Committee and the Sex and Law Committee.

The first recommendation is that the temporary maintenance guidelines contained in Domestic Relations Law section 236 (Part B) (5-a) be made applicable to spousal support cases in Family Court. The report states, “In 2010, Part B of Section 236 of the Domestic Relations Law (“DRL”) was amended to add a new subdivision 5-a, which establishes guidelines for determining temporary maintenance awards. One purpose of this bill was to provide consistency and predictability in calculating awards. However, by amending only the DRL, the bill widened the inconsistency between awards of spousal support in Family Court and awards of temporary maintenance in Supreme Court. We recommend that guidelines for temporary maintenance in matrimonial cases also apply to spousal support awards in Family Court, because the predictability of guidelines would benefit Family Court litigants, judges, and attorneys.”

The second recommendation is that the Commission take a critical look at the concept of “enhanced earning capacity” in equitable distribution as it relates to final maintenance awards. “In practice, the use of the Enhanced Earning Capacity concept is difficult and costly to implement,” states the report: “The concept of Enhanced Earning Capacity as an asset asks experts to project into the future based on current income or potential income and reduce this projected income into present value.” The report cites the current statutory move to income-based support as a basis for analyzing whether the use of Enhanced Earning Capacity is still necessary to correct perceived inequities in the law. “There may be better ways to provide for equity between divorcing spouses that take into account actual earnings and provide for a mechanism to modify awards under certain changes in circumstance that are based upon facts rather than conjecture,” states the report.

The third recommendation is that the temporary maintenance guidelines be amended in certain key respects so that the statute can be fully workable. For example, the report recommends that the calculation of temporary maintenance be made before child support is calculated and that temporary maintenance be included as part of the payee’s income.  Also, the report recommends that the temporary maintenance guidelines not include reference to equitable distribution since equitable distribution cannot be a consideration when awarding temporary maintenance.

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