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Senate Judiciary hears testimony on fixing divorce law

September 30, 2013
A commission that reviews legislation told the Senate Standing Judiciary Committee last week that a 2010 spousal maintenance law should be altered to allow for fairer and more consistent results in divorce settlements.

In a public hearing last week, the New York State Law Revision Commission and other legal experts gave testimony about the successes and failures of recent changes made to state divorce law.

The hearing focused on a study released in May 2013 by the commission, which observed the impact of the changes and made recommendations for improvement. A primary focus was the implementation of a formula used to calculate temporary spousal maintenance in an attempt to alleviate litigation and inconsistency in divorce proceedings. The formula closely resembles the standard used to determine child support payments.

"Inconsistency and unpredictability reduce the likelihood of settlement; they increase the cost of obtaining a divorce; they make a divorce proceeding — especially for low income families — very burdensome and they strain the court system," said Peter Kiernan, chair of the Law Revision Commission.

The commission determined that a formulaic approach to spousal maintenance was effective with low-income cases, but it was significantly less effective as income levels rose. They recommend lowering the income cap from $500,000 a year to a combined annual income of $136,000, which would represent 78 percent of all taxpayers.

"In circumstances where there is little marital income and not many marital assets, the formula tends to produce quick decisions and awards, uses court time very efficiently, keep costs low and leads to rapid settlements. More importantly it leads to just results," Kiernan said.

A bill (A.6728-b) sponsored by Assemblywoman Amy Paulin, D-Scarsdale, has been introduced that would amend the law by lowering the income cap to $300,000, extend the formula to final maintenance and implement a formula for determining duration of payment. While the changes do not strictly adhere to the commission's recommendations, Paulin said the report was taken into consideration and expects to receive a great deal of support in passing the legislation.

Allan Mayefsky of the New York State Bar Association agreed with the commission's suggestion of setting the income cap at $136,000.

"Not because we're looking for a different system for the rich and the poor, but for the purpose of getting to the right result," Mayefsky said. "We believe that once you get to those income levels a formula doesn't get you to the right results automatically."

Supreme Court Justice Matthew Cooper, who presided over divorce cases in matrimonial court for the last four years, urged lawmakers to adopt the recommendations of the commission. According to his testimony, the 2010 temporary maintenance statute had failed to achieve its mission of simplifying the system, especially in higher income cases.

Cooper said factors such as mortgages, medical expenses and cost of schooling are too complex to determine by a calculation and should instead rely on an individualized decision. In addition, that equating the standard of divorce payments to child support standards is inaccurate because while child support is always necessary, spousal maintenance is not.

"The end result is that judges like me are required to spend hours upon hours — especially in high income and complex financial cases — writing 10, 15, and 20 page decisions to justify deviating from the formula so as to reach a result that is fair and sensible," Cooper said.

The Women's Bar Association of New York offered a different perspective on the effectiveness of the 2010 law, saying it should be repealed and replaced altogether. The group reiterated Cooper's point that the same reasoning applied to child support should not apply to spousal maintenance because, simply, most parents can work while children cannot.

"Each family is unique so amounts will be unique," Donna Frosco, president of the Women's Bar Association, said. "Application of a formula, even with a cap, could lead to inequitable and unwanted results."

Although the association was generally opposed to the commission's recommendations, Frosco said that if a formula is to be applied, the income cap should be lowered to $136,000.

Despite criticisms, Emily Ruben of the Legal Aid Society, commended the formula as being extremely effective in helping low and middle-income clients with litigation. The organization offered its support to Paulin's legislation, particularly the component that would create a guideline for determining duration of temporary spousal maintenance.

  1. print email
    This 2010 law has to change for a case like my...thoughts
    October 25, 2013 | 01:39 AM

    Married in Sept 2010 to a smart female college grad that never joined the workforce in the 14 months of marriage before leaving me here in Manhattan never to return except for me to help pack ship she filed 1st and stayed with friends closed the joint accounts claiming abandoned with no means. Company layoffs/downsizing to stay aboard took a $325k pay cut 7/2012 to $75K draw and the garnishment started on 9/2012 leaving me $11 on my first check and $126 on the second paycheck then had an accident that cost me my eyesight, newly visually disabled, in the middle series of 6 surgeries and not working begging Cooper to explain to me how he came up with $9,400 per month for a 14 month marriage, no kids, abandoned me, lied on all figures on this form, error ridden in all calculations and names me as the payee on the court filed paperwork 401K-six figure gone, still not divorced because I'm being asked to pay 100% marital debt, and pay her monies I don’t have and I owe over $87K, sandy victim with a $67K out of pocket expense(FEMA $1,945 reimbursement) she keeps all gifts-purses, shoes, jewelry, my Rolexes(I purchased before I knew her), stole my dog that I had before our relationship, cash she withdrew/took $23.6K, assaulted me with a police report to prove it and I chose not to press charges never would or will. Asked to come to court when I’m supposed to be resting to possibly get some vision back in the next 4-6 months. I’d like to know how many hours Coop spent on this calculation.

    Tex NYC
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