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Significant Changes to NY Divorce, Maintenance and Support Law

by Joseph Trotti, Esq. and Eun Chong Jo, Esq

On August 13, 2010, former New York State Governor David Paterson signed into law the most significant package of domestic relations legislation since the late 1980s. These new changes in the law became effective on October 12, 2010 and apply only in actions commenced on or after that date. This article addresses three important changes affecting divorce and child support: (1) no-fault divorce, (2) temporary or interim maintenance and (3) modification of child support.

No-fault Divorce

Arguably the most significant portion of the new legislation is the addition of the long awaited no-fault divorce. This new ground for divorce, called "irretrievable breakdown of the marriage," allows one spouse to unilaterally decide that he or she wants out of a marriage and accomplish that objective, regardless of whether the other spouse agrees to end the marriage or whether the other spouse had been guilty of marital misconduct. While no-fault divorce of this nature has been available in every other state for years, prior to the enactment of this new legislation, New York only allowed divorce by claiming fault against the other spouse, such as cruel and inhuman treatment, adultery, or abandonment of the spouse. What the new legislation does is enable a couple to legally end a marriage which is, in reality, "already over and cannot be salvaged."

To obtain a judgment of divorce under these new changes, the spouse seeking divorce (the plaintiff) must show that the relationship has broken down irretrievably for a period of at least six (6) months. Although the defendant is given an opportunity to dispute the issue of whether the marriage is irretrievably broken and assert certain defenses, it appears that practically speaking, these defenses are futile and will be unsuccessful in overcoming the plaintiff's assertion that it is irretrievably broken. However, while asserting "irretrievable breakdown" resolves the issue of grounds for divorce, the plaintiff will still need to establish that economic issues, such as spousal support, child support and legal fees, and custody and visitation issues have been addressed by the parties before a judgment of divorce can be obtained on that ground. One of the critical impacts of the new statute is that the "innocent" spouse under New York's prior fault-based system could lose a great deal of leverage in settlement negotiations. Previously, the defendant in a divorce action could delay, and in some instances, even block, the divorce process by contesting the grounds for divorce. This would result in the need for a grounds trial and the postponement of the resolution of economic and custody issues, which the defendant would use as financial leverage or to block the divorce process itself. With the new no-fault ground for divorce, the "innocent"spouse will likely lose that leverage.

Temporary or Interim Maintenance

Another significant component of the recently-passed statute imposes a new formula method for determining the amount of temporary maintenance while the proceeding is pending. This new formula, unlike the statutory formula for calculating permanent maintenance, does not consider factors such as the parties' pre-separation standard of life and can be understood as basic wealth redistribution. Simply put, when there is an income gap between the two parties such that the less-monied spouse's income is less than two thirds of the more-monied spouse's income, the statute directs that two different calculations be performed using the parties' income and the amount of interim maintenance is equal to the lower of the two calculations. Where the more-monied spouse's yearly income exceeds $500,000, there are two other formulas that are applied to the parties' income and again, the lesser result is the amount of temporary maintenance. As noted above, the resulting amount is not likely to be adjusted for any need-based or other factors and will likely result in a temporary award that is greater than any final maintenance award could be.

Not only does that temporary award remain in place until there is a final award of maintenance, it can also impact the litigation and the final award itself. First, it can cause the receiving spouse to prolong the litigation to extend the time that the interim maintenance is received, since the interim award is likely to be greater than that for permanent maintenance. Interestingly, it is left to be seen whether courts will simply convert the interim award into the final award due to the ease of doing so and the fact that the parties have been operating under those terms. Therefore, the interim award becomes a significant issue that should not be overlooked or considered lightly.

Modification Of Child Support

Another major change in the law affects the standard for modifying child support. Before the enactment of the new law, courts distinguished between modification of a child support provision in a court order or divorce judgment, where there is no surviving agreement, and modification of a child support provision in a separation agreement or stipulation that is incorporated into but not merged with a divorce decree. Under the Boden case, New York courts have held that where there is only a court order or judgment ordering child support, "substantial changes of circumstances" must be shown to have occurred since the order was entered to modify child support payments. On the other hand, where there is a separation agreement or stipulation that is incorporated into but not merged with a divorce decree, the agreement or stipulation is deemed to be an independent contract binding on the parties. It is therefore subject to a much higher standard to modify it, meaning that the agreement will not be disturbed or modified without a showing of "unanticipated and unreasonable change in circumstances." In a later case, Brescia, the Court of Appeals recognized that the needs of a child take precedence over the terms of the agreement when it appears that the best interests of the child are not being met. As a result, the Brescia Court ruled that support obligations may be modified based purely on a "needs of the child" analysis.

The new law does away with the guidelines set forth in Boden and Brescia, instead providing two new bases for an application for a modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15% change in either party's income since the order was entered, last modified or adjusted. The 15% change in income can be based on either an increase or decrease in income. However, where a parent seeks a reduction in child support based upon a 15% decrease in his or her own income, the parent must prove that the decrease in income was involuntary and he or she has made diligent attempts to secure appropriate employment.

Either parent is required to meet one of these two thresholds to make the application for modification to the court in the first place, unless the parties specifically opted out of applying that standard in an agreement or stipulation entered into between the parties. Once it is met, the court is then permitted to consider the application and the financial circumstances of both parents to determine the appropriate modification of the support.

This new standard, along with the changes discussed above and others, can significantly impact divorce and support cases. The attorneys at Vishnick McGovern Milizio llp are available to address any concerns that you may have with respect to addressing your needs in the complicated arena of domestic relations law.

Joseph Trotti, Esq. is a Partner and Eun Chong Jo is an Associate in the Litigation and Family Law Practice Areas at Vishnick McGovern Milizio. They can be reached by email at Jtrotti@vmmlegal.com and Ejo@vmmlegal.com, respectively. Alternatively, they may be reached at 516-437-4385