As New York matrimonial lawyers know, we are getting new maintenance provisions. Exactly when those laws go into effect is still unknown as of the third week of August. All of the new laws except one go into effect 120 days after becoming law — the exception being the new temporary maintenance law which goes into effect 30 days after becoming law. However, these new statutes do not “become law” until the governor signs them, and as of the writing of this column, Gov. Andrew Cuomo has not yet signed. Last month this column provided overview of the new maintenance laws. This month delves into some of the less publicized parts.
One interesting change actually involves equitable distribution, rather than spousal maintenance. Ever since the Court of Appeals handed down the O’Brien decision [66 NY 2d 576, 498 NYS2d 743 (1985)], New York has been unique among the states in considering degrees, licenses, and careers as marital property subject to distribution between the spouses. However, New York will shortly be joining the other states, via a change in the factors the court is to consider in determining equitable distribution. Domestic Relations Law 236B(5)(7) is being modified to read:
“Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse or career potential of the other party. The court shall not consider as marital property subject to distribution the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse.” (new language in italics)
The degrees, licenses, careers, etc. themselves are not marital property, but the court can consider the contributions to these attainments by the non-titled spouse in distributing the other marital assets. This change seems to only muddy the water, since how is the court to value the contributions when the values of the degrees, licenses, and so forth are not marital assets. It is interesting that the change in equitable distribution is included in a new law that is devoted to providing specifics for awarding spousal maintenance. Does it not make more sense that a spouse who contributes to the other’s enhanced income should share in that income through spousal maintenance? Perhaps the drafters just wanted to be rid of O’Brien and its progeny and chose this as a convenient way of doing so.
As it is difficult to wade through the very wordy changes relative to spousal maintenance, below are some tidbits to keep in mind for everyday practice:
- The new cap on income in the maintenance guidelines, both temporary and post-divorce is $175,000. The previous one (on temporary maintenance only) was $543,000. Like the child support cap, the maintenance cap will be recalculated every two years using the consumer price index. The court has discretion to award maintenance on income over the cap.
- If the court’s maintenance award deviates from the guidelines, the court is required to set forth the factors considered, either in writing or on the record, and neither parties nor counsel can waive this requirement.
- Temporary maintenance terminates no later than the entry of the Judgment of Divorce or upon the death of either party. This wording allows the court to limit the duration of temporary maintenance, e.g., in a case in which the parties were married only a short time and the divorce has dragged on longer than the marriage. Post-divorce, indefinite maintenance terminates upon remarriage of the payee spouse, death of either party, or modification by a court.
- Income for post-divorce maintenance includes income from income-producing property that is conveyed to a party under equitable distribution.
- Retirement, either full or partial, provides grounds for modification of a post-divorce maintenance award, providing it results in a substantial drop in income.
- New factors in post-divorce maintenance include termination of child support and income on assets being distributed.
Stay tuned–Once we have the new laws in place, we can start preparing for the decisions on how the statutes are to interpreted.
Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.