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Memorandum of Support

Empire Justice Memo of Support: Provide Consistency and Efficiency in Determining Spousal Maintenance in Divorce

A.9606 (Weinstein)/S.7266 (Bonacic)

In the interest of fair, predictable and consistent matrimonial reform maintenance awards for economically vulnerable spouses in New York, Empire Justice Center supports A.9606/S.7266
As a statewide support center for legal services programs and the clients they serve, Empire Justice Center is very aware of the many complexities in divorce matters, particularly those involving families who are low income or are impacted by domestic violence.  We believe that the standardization of maintenance practices is long overdue in New York State, and that this bill will bring a measure of economic stability to these populations.
Since 2010, there have been several critical legislative improvements to the divorce process in New York.  The passage of no-fault divorce, attorney fees for the non-moneyed spouse and temporary maintenance standards have indeed improved the landscape.  However, these advancements do not yet address the problem of and need for final maintenance award guidelines that will help shore up a family’s economic stability long after tumultuous divorce proceedings have ended.  Presently, these awards are considered “wild cards,” with little ability to predict if maintenance may even be awarded, much less for how much or how long.        

A.9606/S.7266 provides predictability and consistency because it would allow lawyers to holistically anticipate, with improved accuracy, the results of equitable distribution and awards of child support.  As with the Child Support Standards Act, using standards to also calculate final maintenance awards would be simple and straightforward enough, so that even without an attorney, low and moderate income spouses could make a claim for maintenance.  Just as the use of standards for temporary maintenance has created an increase in settlements and a reduction in the length of litigation, it can be expected that providing standards for post-divorce maintenance awards will similarly further streamline the divorce process and provide more consistent awards.  Additionally, this bill recognizes that maintenance would more fairly and equitably compensate the less moneyed spouse for indispensable economic contributions made to the marriage, such as giving up a career, passing up a promotion, taking a more flexible job in order to support the more moneyed spouse’s career, raising children or caring for elderly relatives.  Where a guideline appears inappropriate for a particular family’s case, the bill provides courts with the discretion to adjust the duration or the amount of the award accordingly.
Under this bill, maintenance is determined before child support.  Our support for this bill is conditioned on an understanding that, in situations where the application of the formula for maintenance reduces a payor’s income to the self-support reserve, and the payor is also the non-custodial parent, that the basic child support obligation would be consistent with Family Court Act 413(1)(d), which states that that in such situations the “basic child support obligation shall be fifty dollars per month.”  Such a result is required because the “protection afforded by the application of paragraph (d) is absolute.” Cary on Behalf of Mahady v. Megerell, 219 A.D. 2d 334, 337 (Third Dep’t 1996).  Additionally, the child support formula as set forth in  413(1)(b)(vii) requires that in determining “income” that is to be used to determine the basic support obligation, maintenance actually paid be deducted from the non-custodial parent’s income before the child support guidelines are applied.  Under this provision, when the subtraction of maintenance brings the non-custodial parent’s income to the self-support reserve, a $50 order would be the proper amount under the guidelines. 

Empire Justice Center urges both the Assembly and the Senate to support this long overdue reform.

This memo was prepared by:

Amy Schwartz-Wallace

Empire Justice Center
Telesca Center for Justice
One West Main Street, Suite 200
Rochester, NY  14614 

(585) 454-4060
(585) 454-2518

Susan C. Antos

Empire Justice Center
119 Washington Avenue
Albany, NY  12210 

(518) 462-6831
(518) 935-2852