The Legislation Passed. Now What? – Samuel W. Seymour

Samuel W. Seymour

President’s Column, November 2011

The New York City Bar Association’s members devote a great deal of time and energy to analyzing and commenting on legislation. But our work does not necessarily end once the legislation we have supported becomes law. After over a decade of analysis and advocacy by the City Bar, two major laws were passed that will reshape matrimonial law in New York. And in each case, after all that work, we see the importance of remaining just as active in the implementation of the laws.

In 2010, New York enacted “no fault” divorce, finally joining all other states in permitting marriages to end without one spouse casting blame upon the other. This law was part of a package of legislation that also included a new formula for calculating how temporary maintenance is awarded to the lesser-monied spouse. The package of bills represented compromises among various interests concerned both about the ease of dissolving a marriage that has irretrievably broken down and how to protect spouses who may be economically disadvantaged by a divorce, particularly among couples with lower incomes. Recognizing the complications that are likely to ensue from these dramatic changes to New York’s divorce law, the legislature assigned to the Law Revision Commission the task of reviewing and assessing the economic consequences of divorce on the parties, reviewing the maintenance laws of the state, and making recommendations to the legislature.

We realized the importance of providing guidance to the Commission, and also realized that the diversity of perspectives within our committees gave us a fine opportunity to coalesce views on how the new laws should be implemented and provide that shared view to the Commission. Four City Bar committees—Sex and Law, Matrimonial Law, Family Court & Family Law, and Domestic Violence—worked together and prepared a report to the Commission that makes three main recommendations: first, 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; second, that the Commission take a critical look at the concept of “enhanced earning capacity” in equitable distribution as it relates to final maintenance awards; and, third, that the temporary maintenance guidelines be amended in certain key respects so that the statute can be fully workable. The committees will continue to monitor the implementation of this legislation.

In 2011, the City Bar’s long effort to achieve marriage equality in New York State was realized. However, our work does not end there. The general principle now must give way to the specific application of the law and we remain committed to educating the bar as to the practical implications of marriage for same-sex couples over a variety of practice areas – labor and employment, taxation, immigration, trusts and estates, and family law, to name a few.

Indeed, as part of the effort to pass the marriage equality legislation, the City Bar collaborated on a report that found 1,324 New York statutes and regulations that confer rights and duties on married individuals. This has led the City Bar to develop a series of programs analyzing the changing landscape of marriage for same-sex couples, including the lingering effects of the Defense of Marriage Act, and offering more particular continuing legal education as to the ramifications of same-sex marriage in particular areas of practice. In September, 12 City Bar committees presented a multi-disciplinary introductory forum to discuss the new law and remaining challenges. In October, we presented a CLE program on Defense of Marriage Act litigation. In November, we presented a CLE program on how the new law is expected to impact specific practice areas. And, in June, we plan to put on a full-day CLE program that analyzes the actual impact of marriage equality in its first year.

As these examples show, a law’s passage is often just the first step on a long road to actual implementation of the law’s intent, which starts with lawyers understanding the new law, communicating ongoing concerns to policymakers, and evaluating how the law is being used and interpreted. The City Bar will continue to play an integral role in the implementation of laws at each step along the way.