Home / Expert Opinion / Matrimonial Matters: Support caps and debate over no-fault law

Matrimonial Matters: Support caps and debate over no-fault law

Sara Stout Ashcraft

Current topics attracting family law practitioners’ attention include newly released figures for support caps and the ongoing debate about how no-fault the no-fault divorce law really is.

Statutory support ‘caps’

In January 2010, the new statutory income “cap” for calculation of child support obligations replaced the old $80,000 cap set in the 1980s. Domestic Relations Law §240 and Family Court Act §413 were modified to apply a 2010 cap of $130,000 of the parents’ combined child support income. Under the provisions of the 2010 modifications, a method for altering the cap in coming years was included.

Certainly this was a needed addition to the law, as family lawyers previously had been burdened with a cap that may have been generous when written but as wages increased over the years, became increasingly unrealistic. Under the current law, “beginning Jan. 31, 2012, and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States Department of Labor Bureau of Labor Statistics for the two-year period rounded to the nearest one thousand dollars,” Social Services Law §111-i(2)(b).

Fortunately, this same law provides that it is the duty of the commissioner of Social Services to promulgate the amount of the adjusted child support cap. According to the Office of Court Administration, the cap for 2012-2013 is $136,000.

Under the temporary maintenance guidelines set forth in Domestic Relations Law §236B(5-a)(b)(5), the income cap applied to the payor’s annual income to calculate temporary spousal support was originally $500,000. However, like the child support cap adjustment discussed above, this cap is to be increased Jan. 31, and every two years thereafter using the same consumer price index calculation. The Office of Court Administration has just announced that the 2012-2013 temporary maintenance income cap is $524,000. 

No-fault contest controversy

Virtually since the inception of the New York no-fault divorce law, trial courts have been split on whether a claim by one party that the marriage has been “irretrievably broken” bars the other party from contesting the divorce.

When the no-fault option was included in the Domestic Relations Law in 2010, it was added to the list of grounds under DRL §170, becoming number seven. The controversy in the courts stems from another section of the Domestic Relations Law, §173, which states, “In an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce.” To date, no New York appellate court has weighed in on the controversy. However, there are some competing trial level decisions, including:

Held claim under DRL §170(7) cannot be contested:
Townes v. Coker, Nassau Cty. Sup. Ct., NY Slip Op 22031 (2012)
Vahey v. Vahey, Nassau Cty. Sup. Ct., 200434/11 (2012)
A.C. v. D.R., Nassau Cty. Sup. Ct., NY Slip Op 21113 (2011)
Palermo v. Palermo, Monroe Cty. Sup. Ct., 2010/15823 (2011)

Held claim under DRL §170(7) can be contested:
Schiffer v. Schiffer, Dutchess Cty. Sup. Ct., 33 Misc. 3d 795 (2011)
Strack v. Strack, Essex Cty. Sup. Ct., 31 Misc. 3d 258, (2011).


Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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