Wednesday, February 1, 2012
Wednesday, January 18, 2012
Wednesday, December 28, 2011
Sunday, June 26, 2011
NEARLY BORN ON THE 4TH OF JULY: Same-Sex Marriage Passes in NY
June 26, 2011
NEARLY BORN ON THE 4TH OF JULY
We stand at an historic point in time where traditional notions of “marriage” have changed in the State of New York. We are the largest State to have enacted same-sex marriage legislation and by virtue of our proximity to other States which have enacted similar laws, this renovation of thought and acceptance has the ability to “procreate”. Same-sex couples may now marry and claim their entitlement to their unalienable rights to “life, liberty and the pursuit of happiness” just as is provided in that most venerated of Declarations signed on July 4, 1776.
I have previously written and lectured on this issue. (See i.e.- “Same-Sex Marriage: Right to Divorce, But Not To Marry?", New York Law Journal, March 2008). Where New York was recognizing out-of-state same-sex marriages, it created not only a basic inequity to our own citizens, but in essence a farcical one. Those whose foreign same-sex marriages were recognized here, could then be divorced here. I then wrote that if one takes the position that marriage was the more “noble” state of being, and same sex-couples married out of state could legally divorce here, they must be afforded the ability to marry here and avail themselves of all which the more noble state of marriage provides.
The enactment of the “Marriage Equality Act” – approved by the full Legislature on Friday night and signed by the Governor shortly thereafter– provides equality to all on one hand and protects religious freedom on the other. We have then demonstrated the greatness of our system where, in essence, the rights of two minorities are protected and the whole is enhanced. Moreover, the right thing has been done.
In changing his thought process after running on an anti-same-sex marriage position, Republican Senator Mark Grisanti spoke his heart and mind stating: “I would not respect myself if I didn’t do the research, have an open mind, and make a decision — an informed decision — based on the information before me. A man can be wiser today than yesterday, but there will be no respect for that man if he’s failed in his duty to do the work. I cannot legally come up with an argument against same-sex marriage. Who am I to say that someone does not have the same rights that I have with my wife, who I love, or to have the 1300+ rights that I share with her? […] I cannot deny that right and opportunity for someone, nor stand in the way for them to obtain the rights that I have. […] I cannot deny a person, a human being, a taxpayer, a worker, people in my district and across this state — the state of New York — and those people who make this the great state it is, the same rights that I have with my wife.”
As we readily approach another 4th of July, we understand that both “separate and equal” and “separate, but not quite equal”– are wrong. So for those who spoke their minds honestly and to those who now have the same right to share their lives as wedded couples, we should all be proud.
www.divorcenewyorkstyle.com
NEARLY BORN ON THE 4TH OF JULY
We stand at an historic point in time where traditional notions of “marriage” have changed in the State of New York. We are the largest State to have enacted same-sex marriage legislation and by virtue of our proximity to other States which have enacted similar laws, this renovation of thought and acceptance has the ability to “procreate”. Same-sex couples may now marry and claim their entitlement to their unalienable rights to “life, liberty and the pursuit of happiness” just as is provided in that most venerated of Declarations signed on July 4, 1776.
I have previously written and lectured on this issue. (See i.e.- “Same-Sex Marriage: Right to Divorce, But Not To Marry?", New York Law Journal, March 2008). Where New York was recognizing out-of-state same-sex marriages, it created not only a basic inequity to our own citizens, but in essence a farcical one. Those whose foreign same-sex marriages were recognized here, could then be divorced here. I then wrote that if one takes the position that marriage was the more “noble” state of being, and same sex-couples married out of state could legally divorce here, they must be afforded the ability to marry here and avail themselves of all which the more noble state of marriage provides.
The enactment of the “Marriage Equality Act” – approved by the full Legislature on Friday night and signed by the Governor shortly thereafter– provides equality to all on one hand and protects religious freedom on the other. We have then demonstrated the greatness of our system where, in essence, the rights of two minorities are protected and the whole is enhanced. Moreover, the right thing has been done.
In changing his thought process after running on an anti-same-sex marriage position, Republican Senator Mark Grisanti spoke his heart and mind stating: “I would not respect myself if I didn’t do the research, have an open mind, and make a decision — an informed decision — based on the information before me. A man can be wiser today than yesterday, but there will be no respect for that man if he’s failed in his duty to do the work. I cannot legally come up with an argument against same-sex marriage. Who am I to say that someone does not have the same rights that I have with my wife, who I love, or to have the 1300+ rights that I share with her? […] I cannot deny that right and opportunity for someone, nor stand in the way for them to obtain the rights that I have. […] I cannot deny a person, a human being, a taxpayer, a worker, people in my district and across this state — the state of New York — and those people who make this the great state it is, the same rights that I have with my wife.”
As we readily approach another 4th of July, we understand that both “separate and equal” and “separate, but not quite equal”– are wrong. So for those who spoke their minds honestly and to those who now have the same right to share their lives as wedded couples, we should all be proud.
www.divorcenewyorkstyle.com
Wednesday, March 9, 2011
DivorceNewYorkStyle: THE OF IMPORTANCE OF BEING CHARLIE
THE OF IMPORTANCE OF BEING CHARLIE
Let me start by getting it all out of my system-- WINNING!!
That felt good. My tiger blood and napalm searing brain is charged up!
FASTBALL!: Charlie Sheen's warlockian battles and rants have hit the airwaves, twitter world, and lexicon. That being said, his child custody issues, both with his present wife and ex- wife, have been profoundly affected by his media blitz. While present spouse Brooke Mueller, and ex, Denise Richards, have had their drug issues (Mueller) and sexcapades (Richards), respectively, in the public eye, Mr. Sheen's behavior has overshadowed all. What then has this done to his parenting rights, particularly as his sons with Ms. Mueller were very openly broadcast being removed from his home even while Ms. Mueller was going in and out of rehab?
As of the writing of this post, Mr. Sheen is not in rehab, not in jail, and I believe not presently charged with any crime. Until he was suspended from “Two And A Half Men”- in what appears to be a hypocritical money grab; he was (even after his many publicized issues with women and drugs) the highest paid actor on the highest rated network TV show, consistently rewarded for his performance. To the contrary, Ms. Mueller, who had supposedly just gone on vacation with Sheen and at least one of his “goddesses”, is reportedly in a day treatment facility for addiction and has had her mother flown in to assist with the children.
Should the rantings of someone who has been a successful emoter for most of his life provide such shock, given his history and the behavior of many such public figures who parade themselves in front of the tabloid media, reality TV, and otherwise? Can children be raised in such environs without suffering? Given the extent to which "normalcy" is attenuated in these “celebrity” cases, the issue of what is a "normal" upbringing to society at large and to judges who hear there cases, is challenged. A different standard then emerges. Even so, it would appear that Mr. Sheen as a father, has an uphill battle against his present substance challenged wife who had the children removed from Mr. Sheen's home on an "ex parte" (without advance notice) application and has not seen the children since as a result.
This post in essence is, then, not really about Charlie Sheen, but about the still existing general perception that women are more suitable custodial parents than men.
A real-life, but unfortunately typical recent example:
Father has, what used to be called “visitation”, now “parenting time”, under a court order resulting from an agreement. Father is later married, has two other children, lives out in the suburbs, and is a career professional. He agrees to travel every other weekend to pick up his son from the mother who lives three counties away. She repeatedly fails to provide the child to him and after he makes several petitions to the court, she counters by claiming the six year old child is afraid of him and that he hits the child. She takes the child to school where “coincidentally”, in front of school officials the child begins yelling in words or substance, “Don’t make me go to my daddy, he hits me, I am afraid.’ The Father is nowhere around, the child was returned the day before after having a pleasant weekend with the Father, his wife, and the child’s two young half-siblings. As a result of this incident, the Mother takes the child to a doctor—not the child’s regular pediatrician—who says bruises on the child “may” have been caused by the Father based on what the “child” told him. Child Protective Serves gets involved to investigate, but not before the Mother files an ex parte application to the court on these allegations, and has the Father’s parenting time suspended. After two months, the CPS report comes back finding they do not believe the child, and that school officials have been telling the Mother for two years that she should have the child in therapy, but she has refused. The judge tells the parties that the suspension is lifted and that it does not appear that parenting time should have been suspended in the first place. The court also tells the Mother that parenting time is to re-commence immediately. That does not occur.
The Child is withheld for another two months and the Father’s violation petitions are not heard by the court. Another application is brought by the Father for contempt and a change in custody. The Mother changes lawyers but is told by a new judge that the order is in place for the Father’s parenting time. That directive is ignored. The next court date, the court is informed that there has been non-compliance and that it is now four months that the Father has not seen the Child and vice versa. The “child’s attorney” says they need therapeutic visitation to repair the relationship between the Father and the child who says he is “afraid”. The six year old refers to the Father by his first name. It is demanded that this behavior not be tolerated; that the six year old doesn’t get to determine when he goes to the Father; that the Mother needs to be read the riot act; that the Father should have each and every full weekend with the Child to make up for lost time until the next court date which is a month away—even if the Child is kicking and screaming. This is the Mother’s doing.
The court states that it believes the Mother is simply refusing to comply with the court’s order. The result: the court modifies the order so that the Father gets the child every weekend until the next court date, BUT—not for his regular Friday to Sunday time. Every Saturday from 10 a.m. to 6 p.m.—in effect, less time that he is entitled to and over objection. If the situation was reversed and the Father was not giving the Mother her allocated time or was not paying child support (which he still is), would this behavior been met with such a light touch and less time? And has the “child centric” view of the world, where six year olds get to determine what they and the adults are required to do, gone haywire?
WINNING???
I don’t think so.
Author’s note: If Charlie Sheen or any of the other persons referenced herein have comment on my opinion, I can be reached at the gnarly galaxy known as the blog address set forth. Go down past the trolls and make a left at the Adonis DNA stand.
Tuesday, December 14, 2010
DivorceNewYorkStyle: The State of Dis-Union
THE STATE OF DIS-UNION
As another year draws to a close, I thought I would take a brief look back and see how far we have come/receded. Also, a look into the cloudy crystal ball to take a peek at where we may be going. After a year of sweeping legislative changes, on-going battles over same-sex marriage, some odd decisions out of our appellate courts, and the ratcheting up of litigation, I see more of the same for 2011. “Why”, you ask? Let us explore...
As I discussed in my last post, the interim spousal support bill which became effective on all cases commenced on or after October 12, 2010, remains a mess. We will not have a clue where this will go until motion after motion is filed, decided and appealed– and maybe not even then. There may be some attempt to amend the statute, but given a new Legislature and a new Governor– combined with the same old politics...
There was also a child support modification law which went into effect on matters commenced on or after October 13, 2010. It adds two additional grounds for modifying child support orders/agreements unless the parties opt out: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. Accordingly, unless there is an opt out of these new grounds, all agreements and orders affected will be subject to litigation every three years.
There is also talk about a same-sex marriage bill coming around again, but remember...same old politics.
As to our courts, there are some discussions about use of “non-judges” within the system to increasingly assist in rendering decisions and putting advance peremptory pressure on litigants (read: lawyers) to make fewer applications to the court. The predicted result: more stagnation and inconsistent/erroneous decision-making. How to solve the problem: (1) Eliminate wasteful/unnecessary conferences; (2) Have the courts issue timely decisions that have consequences; (3) Issue sanctions against those who are abusing the system when their applications are frivolous- there is a Court Rule in place which defines frivolous conduct– use it. This does not necessarily chill a litigant’s right to be heard, it only lets those who adopt a "scorched earth" approach understand that if their motion is not meritorious, they will pay a heavy price.
The inconsistency of our trial and appellate decisions is something which will never be eliminated, simply because judges are still individuals and individual opinions vary. But, while matrimonial courts are courts of “equity”, “result oriented” decision-making hurts the system and is a prime reason why the courts are all over the map and fail to provide clear guideposts for attorneys and clients to rely upon. The result: more litigation and unhappier parties.
Finally, as the economy continues to hyper-pressurize the daily lives of our citizens, emotions and stress will remain higher. This makes settlement more difficult for many to achieve and litigation, even in the face of mounting costs, more likely. The possible solution: realism; managing expectations based upon past history, in light of (a) the present reality while (b) keeping an eye on the future. Doing this makes for mature and long lasting results. The gauntlet can always be thrown, the trick is not to let the gauntlet throw you first. Having a true understanding of the totality of the issues is essential to making informed decisions. That goes for everyone– lawyers, clients, and judges. After all, what you don’t know, can hurt you a whole lot.
While I see more of the same for the upcoming year, going forward, there are potential solutions which will help a bad situation get better as opposed to worse. And so, in this season of lights, joy, and revelry, as my court appearance calendar runneth over, Happy Holidays to all.
http://www.divorcenewyorkstyle.com/
As another year draws to a close, I thought I would take a brief look back and see how far we have come/receded. Also, a look into the cloudy crystal ball to take a peek at where we may be going. After a year of sweeping legislative changes, on-going battles over same-sex marriage, some odd decisions out of our appellate courts, and the ratcheting up of litigation, I see more of the same for 2011. “Why”, you ask? Let us explore...
As I discussed in my last post, the interim spousal support bill which became effective on all cases commenced on or after October 12, 2010, remains a mess. We will not have a clue where this will go until motion after motion is filed, decided and appealed– and maybe not even then. There may be some attempt to amend the statute, but given a new Legislature and a new Governor– combined with the same old politics...
There was also a child support modification law which went into effect on matters commenced on or after October 13, 2010. It adds two additional grounds for modifying child support orders/agreements unless the parties opt out: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. Accordingly, unless there is an opt out of these new grounds, all agreements and orders affected will be subject to litigation every three years.
There is also talk about a same-sex marriage bill coming around again, but remember...same old politics.
As to our courts, there are some discussions about use of “non-judges” within the system to increasingly assist in rendering decisions and putting advance peremptory pressure on litigants (read: lawyers) to make fewer applications to the court. The predicted result: more stagnation and inconsistent/erroneous decision-making. How to solve the problem: (1) Eliminate wasteful/unnecessary conferences; (2) Have the courts issue timely decisions that have consequences; (3) Issue sanctions against those who are abusing the system when their applications are frivolous- there is a Court Rule in place which defines frivolous conduct– use it. This does not necessarily chill a litigant’s right to be heard, it only lets those who adopt a "scorched earth" approach understand that if their motion is not meritorious, they will pay a heavy price.
The inconsistency of our trial and appellate decisions is something which will never be eliminated, simply because judges are still individuals and individual opinions vary. But, while matrimonial courts are courts of “equity”, “result oriented” decision-making hurts the system and is a prime reason why the courts are all over the map and fail to provide clear guideposts for attorneys and clients to rely upon. The result: more litigation and unhappier parties.
Finally, as the economy continues to hyper-pressurize the daily lives of our citizens, emotions and stress will remain higher. This makes settlement more difficult for many to achieve and litigation, even in the face of mounting costs, more likely. The possible solution: realism; managing expectations based upon past history, in light of (a) the present reality while (b) keeping an eye on the future. Doing this makes for mature and long lasting results. The gauntlet can always be thrown, the trick is not to let the gauntlet throw you first. Having a true understanding of the totality of the issues is essential to making informed decisions. That goes for everyone– lawyers, clients, and judges. After all, what you don’t know, can hurt you a whole lot.
While I see more of the same for the upcoming year, going forward, there are potential solutions which will help a bad situation get better as opposed to worse. And so, in this season of lights, joy, and revelry, as my court appearance calendar runneth over, Happy Holidays to all.
http://www.divorcenewyorkstyle.com/
Thursday, November 4, 2010
DIAL "M" FOR MORASS
DivorceNewYorkStyle: DIAL "M" FOR MORASS
Last month, four new statutes went into effect: No Fault Divorce, Interim Maintenance, Counsel Fees, and Child Support Modification. With the same belated stroke of the Legislature's pen which finally permitted no fault divorce to be enacted, the Legislature (a) enacted a counsel fee statute which many (at least in the Second Department) considered unnecessary and perhaps less effective given existing case precedent; (b) enacted a child support modification statute which will be fodder more more litigation; (c) and enacted an interim spousal support statute that is so filled with absurdity, inconsistency, and conflict that lawyers, clients and courts (both on the trial and appellate level) will be sorting and slugging it out for years.
Instead of simply passing the simple no-fault legislation we desperately needed, the People of the State of New York and its over-burdened court system have been handed a hodgepodge of fecal matter which will make matrimonial litigation more costly and take longer to resolve. Let us all thank the New York State Legislature, Lobbyists with specialized agendas, and the Governor for their "gift" to the People.
Now, you say, aren't all these laws much better for the non-monied spouse-- generally thought to to be the Wife? Not necessarily. Although this is the expressed intent of the statutes, the practical result is that in many cases, the convoluted provisions, particularly of the maintenance law, will cause more litigation, more court time, more resentment, and more motion practice-- because the monied spouse will not be able to live with the result; because the statute itself is in conflict with other provisions of law; because application of the "factors" beyond straight percentages will be contested; because every motion for temporary spousal support will (and should) be met with a cross motion. By the way, there are no corresponding provisions in the Family Court, so none of this applies there. So what does all this mean? Let's get technical (sorry about that part).
For purposes of this posting I will only deal with the interim spousal support statute. Get ready for a headache.
Now-- the court must apply the statutory guidelines unless the parties' opt out in a properly compliant written agreement or if the court deems the guidelines to result in an "unjust or inappropriate finding". The guideline amount is determined in two parts:
(1) A mathematical calculation based upon income up to $500,000 of the payor's income; and
(2) A calculation on income over $500,000 after the mathematical calculation has first been made on income up to $500,000 based upon consideration of 19 factors set forth. The court must set forth the factors considered in its order. These are the same factors to be considered on deviation where the presumptive calculation is deemed “unjust or inappropriate".
The statute does not say that the percentages may be used on income over $500,000. It only says the factors are to be considered on income which exceeds the $500,000 cap. If the lowest calculation on income up to $500,000 results in a finding of $0.00, there shall be no award.
The Statutory Calculation Up to $500,000
"The court shall determine the guideline amount of temporary maintenance in accordance with the provisions of this paragraph after determining the income of the parties:
(1) Where the payor's income is up to and including the income cap ($500,000):
(a) the court shall subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.
(b) the court shall then multiply the sum of the payor's income up to and including the income cap and all of the payee's income by forty percent.
(c) the court shall subtract the income of the payee from the amount derived from clause (b) of this subparagraph.
(d) the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars."
FYI: A maintenance calculator and worksheet is currently available on the Office of Court Administration website in the “Divorce Resources” section under “Temporary Maintenance Tools”: www.http://www.courts.state.ny.us/divorce.
Confused yet? Here are some examples:
1. Payor Payee
$150,000 $20,000
x 30% x 20%
$45,000 $4,000
a. $45,000-$4,000=$41,000
b. $150,000+$20,000=$170,000 x 40%=$68,000
c. $68,000-$20,000=$48,000
Support is presumptively $41,000
2. Payor Payee
$150,000 $100,000
x 30% x 20%
$45,000 $20,000
a. $45,000-$20,000=$25,000
b. $150,000+$100,000=250,000 x 40%=$100,000
c. $100,000-$100,000=$0
Support is presumptively $0.00
3. Payor Payee
$25,000 $0
x 30% x 20%
$7,500 $0
a. $7,500-$0=$7,500
b. $25,000+$0.00=$25,000 x 40%=$10,000
c. $10,000-$0=$10,000
Support is presumptively $7,500
4. Payor Payee
$500,000 $250,000
x 30% x 20%
$150,000 $50,000
a. $150,000-$50,000=$100,000
b. $500,000+$250,000=$750,000 x 40%=$300,000
c. $300,000-$250,000=$50,000
Support is presumptively $50,000
5. Payor Payee
$750,000 $20,000
($500,000 USED)
x 30% x20%
$150,000 $4,000
a. $150,000-$4,000=$146,000
b. $500,000+$20,000=$520,000 x 40%=$208,000
c. $208,000-$20,000=$188,000
Support is presumptively $146,000 on the payor’s income up to $500,000 plus a determination as to additional support on the $250,000 in income over the $500,000 guideline cap based upon 19 factors.
If the presumptive amount is deemed unjust or inappropriate by the court or there is income over $500,000, the following "factors" come into effect:
There is so much more to this, that, to the lay person (and to many lawyers and judges), their head may explode. I will not further bore you with more detail (too late, I know) except to say that this is not good. While the recipient of an interim award (particularly where the payor is a W-2 wage earner) will no doubt benefit from this new law, it does not factor in child support issues or payment of household expenses. Is the recipient supposed to pay for everything in the house from this money? Is the payor supposed to stop paying those bills? What about all the double counting of housing, child care, and medical insurance between this law and the child support law. How did the Legislature manage to give some bizarre consideration to premarital arrangements and adults, including in-laws? How did they factor in marital property when this is an interim provision and marital property has not yet been determined? Etcetera, etcetera, etcetera. I could go on...
We will not be able to figure this all out for at least a year or two when the appellate courts start hearing all of the appeals that will come from this. Of course, the Legislature could go back to the drawing board before that...or not. The bottom line is, this must be corrected quickly and before the deluge of motions, bad decisions and appeals. Unfortunately, I don't think this will be the case and it will be left to courts and lawyers to fix the unfixable. Is there a Tea Party in sight, or just more Mad Hatters?
www.divorcenewyorkstyle.com
Last month, four new statutes went into effect: No Fault Divorce, Interim Maintenance, Counsel Fees, and Child Support Modification. With the same belated stroke of the Legislature's pen which finally permitted no fault divorce to be enacted, the Legislature (a) enacted a counsel fee statute which many (at least in the Second Department) considered unnecessary and perhaps less effective given existing case precedent; (b) enacted a child support modification statute which will be fodder more more litigation; (c) and enacted an interim spousal support statute that is so filled with absurdity, inconsistency, and conflict that lawyers, clients and courts (both on the trial and appellate level) will be sorting and slugging it out for years.
Instead of simply passing the simple no-fault legislation we desperately needed, the People of the State of New York and its over-burdened court system have been handed a hodgepodge of fecal matter which will make matrimonial litigation more costly and take longer to resolve. Let us all thank the New York State Legislature, Lobbyists with specialized agendas, and the Governor for their "gift" to the People.
Now, you say, aren't all these laws much better for the non-monied spouse-- generally thought to to be the Wife? Not necessarily. Although this is the expressed intent of the statutes, the practical result is that in many cases, the convoluted provisions, particularly of the maintenance law, will cause more litigation, more court time, more resentment, and more motion practice-- because the monied spouse will not be able to live with the result; because the statute itself is in conflict with other provisions of law; because application of the "factors" beyond straight percentages will be contested; because every motion for temporary spousal support will (and should) be met with a cross motion. By the way, there are no corresponding provisions in the Family Court, so none of this applies there. So what does all this mean? Let's get technical (sorry about that part).
For purposes of this posting I will only deal with the interim spousal support statute. Get ready for a headache.
Now-- the court must apply the statutory guidelines unless the parties' opt out in a properly compliant written agreement or if the court deems the guidelines to result in an "unjust or inappropriate finding". The guideline amount is determined in two parts:
(1) A mathematical calculation based upon income up to $500,000 of the payor's income; and
(2) A calculation on income over $500,000 after the mathematical calculation has first been made on income up to $500,000 based upon consideration of 19 factors set forth. The court must set forth the factors considered in its order. These are the same factors to be considered on deviation where the presumptive calculation is deemed “unjust or inappropriate".
The statute does not say that the percentages may be used on income over $500,000. It only says the factors are to be considered on income which exceeds the $500,000 cap. If the lowest calculation on income up to $500,000 results in a finding of $0.00, there shall be no award.
The Statutory Calculation Up to $500,000
"The court shall determine the guideline amount of temporary maintenance in accordance with the provisions of this paragraph after determining the income of the parties:
(1) Where the payor's income is up to and including the income cap ($500,000):
(a) the court shall subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.
(b) the court shall then multiply the sum of the payor's income up to and including the income cap and all of the payee's income by forty percent.
(c) the court shall subtract the income of the payee from the amount derived from clause (b) of this subparagraph.
(d) the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars."
FYI: A maintenance calculator and worksheet is currently available on the Office of Court Administration website in the “Divorce Resources” section under “Temporary Maintenance Tools”: www.http://www.courts.state.ny.us/divorce.
Confused yet? Here are some examples:
1. Payor Payee
$150,000 $20,000
x 30% x 20%
$45,000 $4,000
a. $45,000-$4,000=$41,000
b. $150,000+$20,000=$170,000 x 40%=$68,000
c. $68,000-$20,000=$48,000
Support is presumptively $41,000
2. Payor Payee
$150,000 $100,000
x 30% x 20%
$45,000 $20,000
a. $45,000-$20,000=$25,000
b. $150,000+$100,000=250,000 x 40%=$100,000
c. $100,000-$100,000=$0
Support is presumptively $0.00
3. Payor Payee
$25,000 $0
x 30% x 20%
$7,500 $0
a. $7,500-$0=$7,500
b. $25,000+$0.00=$25,000 x 40%=$10,000
c. $10,000-$0=$10,000
Support is presumptively $7,500
4. Payor Payee
$500,000 $250,000
x 30% x 20%
$150,000 $50,000
a. $150,000-$50,000=$100,000
b. $500,000+$250,000=$750,000 x 40%=$300,000
c. $300,000-$250,000=$50,000
Support is presumptively $50,000
5. Payor Payee
$750,000 $20,000
($500,000 USED)
x 30% x20%
$150,000 $4,000
a. $150,000-$4,000=$146,000
b. $500,000+$20,000=$520,000 x 40%=$208,000
c. $208,000-$20,000=$188,000
Support is presumptively $146,000 on the payor’s income up to $500,000 plus a determination as to additional support on the $250,000 in income over the $500,000 guideline cap based upon 19 factors.
If the presumptive amount is deemed unjust or inappropriate by the court or there is income over $500,000, the following "factors" come into effect:
(i) the length of the marriage;
(ii) the substantial differences in the incomes of the parties;
(iii) the standard of living of the parties established during the marriage;
(iv) the age and health of the parties;
(v) the present and future earning capacity of the parties;
(vi) the need of one party to incur education or training expenses;
(vii) the wasteful dissipation of marital property;
(viii) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(ix) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(x) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(xi) the availability and cost of medical insurance for the parties;
(xii) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
(xiii) the inability of one party to obtain meaningful employment due to age or absence from the workforce;
(xiv) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
(xv) the tax consequences to each party;
(xvi) marital property subject to distribution pursuant to subdivision five of this part;
(xvii) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
(xviii) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
(xix) any other factor which the court shall expressly find to be just and proper.
There is so much more to this, that, to the lay person (and to many lawyers and judges), their head may explode. I will not further bore you with more detail (too late, I know) except to say that this is not good. While the recipient of an interim award (particularly where the payor is a W-2 wage earner) will no doubt benefit from this new law, it does not factor in child support issues or payment of household expenses. Is the recipient supposed to pay for everything in the house from this money? Is the payor supposed to stop paying those bills? What about all the double counting of housing, child care, and medical insurance between this law and the child support law. How did the Legislature manage to give some bizarre consideration to premarital arrangements and adults, including in-laws? How did they factor in marital property when this is an interim provision and marital property has not yet been determined? Etcetera, etcetera, etcetera. I could go on...
We will not be able to figure this all out for at least a year or two when the appellate courts start hearing all of the appeals that will come from this. Of course, the Legislature could go back to the drawing board before that...or not. The bottom line is, this must be corrected quickly and before the deluge of motions, bad decisions and appeals. Unfortunately, I don't think this will be the case and it will be left to courts and lawyers to fix the unfixable. Is there a Tea Party in sight, or just more Mad Hatters?
www.divorcenewyorkstyle.com
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