New Domestic Relations Laws of 2010 No-Fault Temporary Maintenance Attorneys Fees

August 22, 2010
By Clifford Petroske

A slate of new domestic relations laws were signed into law by Governor Paterson on August 15, 2010. The amendments to the state Domestic Relations Law make it easier to get a divorce, and make it easier for a less monied spouse to obtain temporary maintenance and payment of attorney’s fees. The new laws go into effect sixty days from signing, on October 14, 2010.

The most significant change is the addition of a true no-fault divorce ground. Under existing law, a spouse wishing to be divorced was required to prove that the other spouse had committed a serious marital transgression, such as cruel and inhuman treatment or adultery. This presented a problem for many people who, without the “good” fortune of having been beaten or cheated on, were unable to get a divorce from a reluctant spouse. As the appellate courts often admonished, New York law provided no means to dissolve a “dead” marriage. As a result, extortion was widespread, as reluctant spouses played the “grounds card” to gain the upper hand in the negotiation of financial issues, knowing that the court could not divide marital assets where the other spouse could not prove one of the pre-set fault grounds. And, when not encouraging extortion, the old law promoted perjury, since an uncontested divorce was almost always based on allegations of sexual abandonment (called constructive abandonment) lasting a year or more, with scant regard for whether these allegations could actually be proved.

Under the new law, a spouse need only show that “the relationship between husband and wife has broken down irretrievably for a period of at least six months.” The new law will only apply to cases filed after the effective date. Although there is no way to say what “broken down irretrievably” will mean, the intent in passage of the statute was to create a true no-fault divorce in New York, where neither spouse would have to suffer extortion, or be forced to commit perjury, to get a divorce.

The provisions concerning temporary maintenance have also been revised. This represents a major change in both practice and procedure. When contemplating a divorce, a dependent spouse often worries that she will not be able support him or herself (and the children) unless a court order directs the monied spouse to pay the bills. In addition to payment of carrying charges and child support, a dependent spouse may need money for his or her own support, called maintenance. When a court orders the monied spouse to pay maintenance while the case is pending, this is called temporary maintenance. To get it, the attorney for the dependent spouse makes an application for a “pendente lite” order, which typically contains provisions for temporary child support, temporary maintenance, payment of attorney’s fees, exclusive occupancy of a home, continuation of medical insurance during the case, and other such relief. Under existing law, an award of temporary maintenance is a matter of court discretion, and could be denied entirely. The amount of temporary maintenance has always varied from case to case and depended upon a multitude of factors, including the demonstrated financial need of the dependent spouse and the “standard of living of the parties established during the marriage,” as well as the monied spouse’s (perceived) ability to pay.

The statute governing maintenance is now amended to provide a formula for determining the “presumptively correct” amount of temporary maintenance to be paid during the pendency of a divorce case. A dual formula approach is prescribed, in which the court calculates the amount of temporary maintenance in two different ways, and then directs the monied spouse to pay the lesser of the two amounts, as the presumptively correct amount.

The new law bears some resemblance to the Child Support Standards Act (CSSA), enacted in 1989, which replaced the old needs-based system for setting child support with a mathematical formula approach. Like the CSSA, the new maintenance law sets forth numerous factors that operate like equitable escape hatches to be employed only when the formula-based “presumptively correct.” temporary maintenance is found to be unjust or inappropriate. The old maintenance statute has factors as well, but only eleven factors are listed (including “any other factor which the court shall expressly find to be just and proper”) and those factors are not designed to be used to justify a deviation from a presumptively correct amount, as under the new law. The factors under the old statute are simply guideposts for a court to consider in determining how much maintenance should be paid. If experience with the CSSA is any guide, the courts will rarely resort to a factor analysis under the new law to deviate from the formula approach to setting temporary maintenance.

Like the CSSA, the use of a formula to determine the presumptively correct amount of maintenance is subject to an income cap. The new statute sets the cap at $500,000 per annum of payor income, a figure which is far greater than the $130,000 cap on combined (payor and payee) income under the CSSA.

An earlier version of the new maintenance law that did not survive legislative committee also provided a formula for permanent maintenance. Permanent maintenance is the term used to describe maintenance set forth in the judgment of divorce that continues into the future after the parties are divorced, regardless of whether it terminates after a period or years or is truly permanent and expires only on the death (or remarriage) of the payor or payee. That proposed but unpassed statute also charted set time periods for each permanent maintenance award based on the length of the marriage (called “post marital income”). These (proposed) time periods went way beyond the duration of maintenance awards that have typically been granted by courts under existing law. Fortunately (or unfortunately) there is no duration of permanent maintenance prescribed under the legislation that the Governor recently signed into law, so courts will remain free to exercise discretion in setting the length of time that permanent maintenance must be paid.

The courts will also be free to set the amount of permanent maintenance under the new law without reference to a formula, since (oddly) the formula approach only applies to awards of temporary maintenance. With one exception, the portion of the original statute that deals with setting permanent maintenance has not been modified. In fact, it is the same portion of the statute that, in the past, has been used to set both temporary and permanent maintenance awards (with the words “temporary maintenance” taken out). In other words, when it comes to permanent maintenance, the court will continue to issue awards based largely on three main factors: The demonstrated financial need of the dependent spouse, the standard of living of the parties established during the marriage, and the monied spouse’s ability to pay.

There is, however, one notable modification of the statute that may effect the way that courts grant permanent maintenance. Added to the host of factors that the court is directed to consider (beyond lifestyle and ability to pay) in setting the amount and duration of permanent maintenance, are numerous new factors that may actually serve to increase the amount and lengthen the duration of permanent maintenance awards. These include “the existence and duration of a pre-marital joint household or a pre-divorce separate household.” Presumably, employing this factor, counsel could argue that a dependent spouse in a monogamous relationship spanning many (say, 25) years, only the last five of which were married, should be entitled to a longer and larger permanent maintenance award than a woman married (and together with) her spouse a mere five years. Other new factors that may serve to enhance maintenance include “acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity…[including] acts of domestic violence,” and “care of children, or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited … a party’s earning capacity.” Other factors that may serve to enhance maintenance include “inability to obtain meaningful employment due to age or absence from the workforce,” and “the need to pay for exceptional additional expenses for the child/children, including but not limited to schooling, day care and medical treatment.” Finally, the legislature added “the availability and cost of medical insurance for the parties” as a factor to be considered in setting permanent maintenance. Of course, the exorbitant cost of medical insurance has long worked its way into permanent maintenance awards, since this is clearly a component cost of the dependent spouse’s “reasonable needs” under the prior law. Spelling this out as an individual factor helps to underscore the importance of the cost of insurance to the dependent spouse.

One final observation — the additional factors added to the permanent maintenance section of the statute are also the factors added to the temporary maintenance section. As described above, in the temporary maintenance section these factors perform a different function, since they are only employed when a formula-based (and presumptively correct) temporary maintenance award would be unjust or inappropriate. In short, in the context of a temporary maintenance award, the factors are “plan B.” However, because the new factors are, if employed, likely to increase the amount of temporary maintenance, the possibility exists that courts will deviate upward from a presumptively correct formula-based temporary maintenance award. This would represent a huge departure from the typical application of the Child Support Standards Act, on which the new temporary maintenance provision was modeled, since virtually all cases in which there have been deviations from the CSSA percentage-of-income support calculation, have been downward deviations. Of course, we can only speculate what the courts will do, since the statute is so new.

An additional amendment to the Domestic Relations Law will make it easier for less-monied spouses to get their attorney’s fees paid in a divorce. The statute dealing with attorney’s fees will now provide for a “rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” A fee award will not be automatic, but should be easier to obtain than in the past, where often an attorney representing a dependent spouse had to await the final judgment for an order directing payment of fees. In addition to the rebuttable presumption, the amendment to the statute directs that fees be paid quickly, at the outset of the case: “where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding.”