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The summer of 2010 may be remembered by many Family Law practitioners as the “Historic Summer of Legislation” that will forever change how matrimonial law is practiced in New York State. There have been five major changes of legislation; new laws that many in the legal community have strong views about.  These changes include significant financial implications.

These five major bills address the following:

1. Significant changes effectuating child support modification (Bill # A8952); effective October 13, 2010,
2. “No-Fault” Divorce (Bill # A3890); effective October 12, 2010,
3.  The new Counsel Fee Bill that addresses payment of attorneys’ fees (Bill # A4532) on behalf of the less monied spouse; effective October 12, 2010,
4. New procedures for setting awards of temporary maintenance while a divorce is pending (Bill # S08390); effective October 12, 2010, and
5. Limiting the grounds by which orders of protection may be denied, or applications for such orders may be dismissed; effective August 13, 2010.

For those of you that have been following our blog throughout the summer, you are very much aware of how the legal community has been intensely interested in these and other changes. For instance, on our podcast Forensic Perspectives, we interviewed the Honorable Sondra Miller on the topic of No-Fault Divorce. In addition, I recently participated in a panel discussion with three prominent attorneys on New York State’s Current Legislation to Develop Maintenance/Alimony Guidelines. Additional information regarding these programs are available on our website.

According to Governor David Paterson, in addition to bringing New York’s divorce laws into the 21^st Century, “These bills fix a broken process that produced extended and contentious litigation, poisoned feelings between the parties, and harmed the interests of those persons—too often women—who did not have sufficient financial wherewithal to protect their legal rights.”

So how is the divorce process now going to be different for Family Law practitioners?  

Let’s quickly look at some of these new provisions.

No-Fault Divorce

Before the “No-Fault” legislation was passed, couples at both ends of the economic spectrum often had to leap over hurdles addressing grounds. With the passing of the No-Fault Legislation, grounds are no longer an obstacle, if certain financial and custody issues have already been resolved. It should also be noted that the no-fault provisions are only applicable after a marriage has “irretrievably” broken down for six months or more.

Counsel Fees

The Counsel Fee Bill is intended to cure instances where the parties have significantly different economic resources. In situations where one party has significantly more assets and/or higher income, the less monied spouse will now have access to funds for attorney fees. It is often said that “all is fair in love and war”. This legislation is intended to even the playing field of the less monied spouse by providing resources for legal representation.  In the end, the court still must exercise its discretion. Many legal practitioners have welcomed this change, but are cautioned to understand that no one will be given carte blanche.

Temporary Maintenance Guidelines Bill

The Temporary Maintenance Guidelines bill will allow for a speedy resolution of the maintenance issues. It is intended to prevent the non-monied spouse from descending into poverty because they lack the resources to obtain a temporary maintenance order. The guideline amount of temporary maintenance is the sum derived by a formula set forth in the statute. The Court has the right to make a durational temporary maintenance award which ceases prior to the end of the case or death. If the Court finds this award unjust, as determined from this formula, it can be changed. 

Modification of Child Support

The Family Court Act (“FCA”) was amended to conform provisions governing the modification of child support orders to the Domestic Relations Law. This change would allow modification of an order of child support due to “substantial change in circumstances”.

In addition, unless parties specifically opt out, the court can modify a post October 13, 2010 order where three years have passed since the last order was entered, modified, or adjusted. Substantial change in circumstances is generally defined in a change in either party’s gross income by 15% or more. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment.

Chapter 341 of the Laws of 2010

Various provisions of the Family Court Act and the Domestic Relations Law have been amended by Chapter 341 of the Laws; effective August 13, 2010. They provide that a court “shall not deny an order of protection solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the application.” The duration of any temporary order shall not by itself be a factor in determining the length of any final order. It applies to all orders of protection pending or entered on or after the effective date.

As you can see from this overview, these changes will significantly impact how you approach a matrimonial case. While this summary is not intended to provide a complete analysis of the changes, you can easily see the financial implications concerning your current and future case load. Many of the local Bar Associations are conducting CLE classes addressing these changes. We have been fortunate enough to have sponsored a number of them. For further information regarding these classes please contact your local Bar Association.

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Since our last blog was published, the New York State Assembly gave final passage on July 1st to no-fault divorce, clearing the way for New York State to allowing couples to end their marriages quickly when one spouse believes the union is over. The new measure, which requires one spouse to swear under oath that the relationship has broken down irretrievably for at least six months, is the final piece of a legislative package enacting the most sweeping changes to the state’s divorce laws in 40 years. This final legislative approval comes after what one member of the Assembly called “an awfully long and hard battle.” The bills now await Governor Paterson’s signature.

No-fault divorce has long been opposed by the Catholic Church, with the view that the legislation would make divorce easier; feminists argued that no-fault did not address the concerns of poorer women. The National Organization for Women of New York State has found itself on the same side of the issue as the Church, although the New York City chapter of NOW supports the legislation.

Marcia Pappas, president of the New York State chapter of NOW, has written recently, “No-fault can take away the bargaining leverage of the non-moneyed spouse—and that is usually the woman….In fairness, any partner to a marriage should be provided with notice that the other partner wants a divorce and given an opportunity to negotiate the terms for the divorce. Often, there is fault with ‘divorce on demand,’ not only can the more moneyed spouse begin hiding assets (which happens even under our current laws), but this spouse can proceed quickly with legal actions before the other spouse, with limited means, even has the time to find and hire an attorney.”

Until 2004, the Women’s Bar Association has also objected to no-fault divorce. But as Annette G. Hasapidis, co-chairwoman of the association’s legislation committee has said, “We came to the realization that forcing one party to either admit or be found at fault in the deterioration of a marriage provides no economic or other advantage to either party. And more importantly, it harms the children of the marriage.” The concern of advocates for women that there would be difficulty receiving appropriate alimony or child support was considered unsupportable by the Women’s Bar Association.

Both supporters and opponents have concerns regarding the creation of a formula that computes alimony. This mechanism, however, is intended to alleviate the conflict and legal jockeying commonly associated with the determination of spousal maintenance.

The Honorable Sondra Miller, currently Chief Counsel of the White Plains law firm McCarthy Fingar, has been advocating for an amendment to allow no-fault divorce for many years. Recently, we had the opportunity to interview Judge Miller for our podcast on this historic legislation. Some of the key questions she thoughtfully addresses include: Why is no-fault divorce still a hot-button issue for politically liberal groups, religious groups and even among certain members of the legal community? Why has it been such an uphill battle for New York legislators to simplify New York State's divorce laws? Is it possible to measure the impact on children without no-fault divorce?

Please visit our Web site www.msgcpa.com to hear our edifying podcast interview with the Honorable Sondra Miller.

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Forty years ago, no-fault divorce was a controversial topic. Among the arguments made against it was that the full-time homemaker would lose leverage if unilateral divorce became a reality. But the American household has changed considerably over the years: more and more, two-parent earner households are the norm, and the working mom/stay-at-home dad model has become commonplace. Since 1969, when Gov. Reagan signed the nation’s first no-fault divorce law, the country has gradually fallen into place with no-fault divorce legislation—except for New York State.

But that seems about to change. On Tuesday, June 15, the State Senate’s Democratic Majority passed a legislative package that seeks to finally end New York’s status as the remaining state without no-fault divorce. The No-Fault Divorce bill restructures New York State’s matrimonial law to streamline the process and improve the outcome of divorce for New Yorkers. The bill, approved 32-29, would allow no-fault divorce after a marriage has “irretrievably” broken down for six months or more and after all financial and custody issues are resolved. The legislative package must still pass the State Assembly, which is considering two bills that would adopt some version of no-fault divorce.

Senator Ruth Hassell-Thompson, a Democrat from Westchester and the Bronx who was chief Senate sponsor of the bill, said after the vote, “What I’m hoping is that because the Assembly now has a partner in the Senate, that will give impetus to help the Assembly move along.”

Under current law, New York couples who want to divorce must fault their spouse on specific grounds, such as adultery or cruel and inhuman treatment. Otherwise, couples must legally separate for a year before being allowed to file for divorce. Proponents of no-fault divorce say a great deal of time and expense—often beyond the means of a spouse—is wasted on legal fees, making a difficult situation considerably worse. The New York Senate legislation—S3890—would permit spouses unilaterally to initiate divorce proceedings in which the court rather than the parties will resolve issues such as property division, alimony, child support and custody.

There have been many concerted efforts over the years to change New York State’s divorce laws, but to no avail. In 2006, for example, a panel appointed by Judith S. Kaye, then New York State’s chief judge, urged a major overhaul of New York’s divorce and child custody rules—including allowing, at long last, no-fault divorce. But opponents, including the National Organization of Women, the Catholic Church and, until 2004, the Women’s Bar Association of the State of New York, objected to change in the law because, among other reasons, it would raise New York State’s divorce rate and hurt women financially.

Perhaps now, after decades of opposition, and the passage of the legislative package by a slim margin, divorcing spouses in New York State will finally be able to avoid the costly litigation and seemingly endless custody battles that have become all so common when a marriage irrevocably ends.

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