Divorce Cases Are Complicated by New Maintenance Rules

A new system for calculating interim maintenance awards in matrimonial actions, adopted last year to make no-fault divorce more palatable, is under fire from many attorneys who say it is confusing, and potentially inequitable.

There are three new sections in the Domestic Relations Law (DRL) that have made significant changes in the divorce process. Section 170(7) added a new ground for divorce, permitting the action if one party declares that a marriage “has broken down irretrievably” for at least six months. All economic, property distribution, and child custody and visitation issues between spouses must be resolved before a divorce can be granted. Section 236B(5-a) established a formula for courts to apply when determining trmporary maintenance for spouses with significantly less income than their partners. It also expanded factors cours must consider when deciding permanent post-divorce maintenance. Section 237(1) created the rebuttable presumption that “counsel fees shall be awarded to the less monied spouse” in a divorce action.

Many in Legal Community Are Critical

Several matrimonial lawyers said the new rules are so rigid that they have taken from judges the discretion to decide fair temporary payments while divorce actions are pending.

Alton Abramowitz of Mayerson Stutman Abramowitz said the temporary maintenance legislation “wasn't well-thought out” and was “slapped together at the last minute” as an element of a legislative package that went into effect on Oct. 13, 2010.

“You have a statute that is totally unworkable,” said Ronnie Gouz of Berman Bavero Frucco & Gouz in White Plains.

“Interim maintenance is a mess,” agreed Pamela Sloan of Aronson Mayefsky & Sloan, the chairwoman-elect of the New York State Bar Association's Family Law Section. “It is a complete mess.”

Under the old system, judges used a “balancing act” in determining what temporary maintenance to award, sifting through a couple's income and expense records and testimony about family obligations to arrive at a fair, temporary financial arrangement, said Lee Rosenberg of Saltzman Chetkof & Rosenberg in Garden City. The idea was to maintain the status quo in a couple's financial relationship and pay for necessities like housing and health insurance, while the details of a post-divorce maintenance settlement were worked out.

Now, courts have been directed to consider 19 financial factors and to use a formula to guide their determinations. The statute “caps” at $500,000 the income that can be applied to an interim award. Judges have discretion to discard the formula results but must explain themselves; in practice, many have been reluctant to go beyond the statutory calculation.

But attorneys say that the statute leaves so many gaps that judges are on their own in answering questions that are important to the outcome. “There is no continuity in the interpretation of the statute,” Rosenberg said.

Supreme Court Justice Sharon Townsend in Erie County, who heads the Office of Court Administration's Matrimonial Practice Advisory Committee, said she has confronted several problems with the temporary maintenance process. For instance, she said the new law says the value of income to be distributed equitably is to be factored into the equation as income for interim maintenance purposes. But she argued that the assets that are distributed equitably have always been calculated at the end of a divorce, not at the beginning of the allocation of temporary maintenance.

“How that factors into 'temporary' maintenance, it doesn't make any sense,” she said.

Justice Townsend and Brooklyn Justice Jeffrey Sunshine, the supervising judge for matrimonial matters in the Second Department, both noted that the statute is silent about who pays the “add-on” expenses needed to keep a household running while more permanent arrangements are thrashed out. Should a person receiving temporary maintenance be responsible for paying such things as the mortgage and taxes on the home, the judges asked in separate interviews, or should that come directly out of the more-monied partner's maintenance payment? The statute does not say.

Justice Townsend said she and other judges have been trying to fill in holes in the statute on a case-by-case basis while awaiting clarity from the Law Revision Commission and the courts.

Justice Sunshine said he is not always certain of the veracity of income figures given by spouses. “There is the determination to be made at the pendente lite stage, what is the parties' income?” Justice Sunshine said in an interview. “I am asked at a very early stage to determine what the parties' income is, even when they may or may not be telling the truth as to their [own] or their spouses' income.”

Help for Low-Income Wives

Some lawyers praised the new guidelines, however.

Emily Rubin, the co-supervising attorney of the family law and domestic violence practice at the Legal Aid Society of New York City, said the changes in the law have helped the low-income women her group serves. Where such women often fled marriages without seeking interim maintenance payments, especially if they were in abusive relationships or not represented by a lawyer, the formula-driven maintenance calculations have guaranteed in most cases that women will receive support, Rubin said. “It has dramatically helped our clients. They are getting much fairer awards, much more quickly ' . Is it harder for the payor spouse to pay these awards? Absolutely. But the single father, generally, still has more income, just not as much more.”

Patricia Ann Grant of Grant & Applebaum, who favored tighter guidelines on how maintenance should be awarded to protect women when she was president of the Women's Bar Association in 2010, called the temporary maintenance award statute a “work in progress.” She said the law is too recent to have worked its way through the appellate process for courts to provide guidance. “I think there are disparate results and there haven't been enough cases decided or appealed to know how to deal with them,” Ms. Grant said. “I think this needs to be refined in greater detail.”

The Guidance So Far

More and more lower court opinions have begun to tackle the statute's anomalies. In Scott M. v. Ilona M., 31 Misc. 3d 353 (2011), for instance, Justice Jeffrey S. Sunshine deviated from the guidelines by ruling that the temporary maintenance total was inadequate to meet the expenses of a wife and the couple's child, and he increased the amount, and also awarded attorney's fees to the woman's attorney.

Other cases, including J.H. v. W.H., 31 Misc.3d 1203(A) and Jill G. v. Jeffrey G., 31 Misc.3d 1209(A), have explored questions of how attorney fees, child support and tax consequences should factor into the temporary maintenance formulas.

Meanwhile, court administrators have supplied judges and litigants with an eight-page online worksheet for calculating an appropriate maintenance award.

The Law Revision Commission has been charged with studying changes in the divorce process, including the temporary maintenance formula, and recommending changes. Mary Rose Bailly, executive director of the Law Revision Commission, said the panel has heard from several experts who are urging it to recommend fairness for parties and more flexibility for judges. “I think that there is a desire both to have a way to predict how the matrimonial awards will occur and consistency across similarly situated individuals, but at the same time allowing judges flexibility to deal with the unique and particular circumstances of a marriage,” said Bailly, counsel to the Aging Law and Policy Program of the Government Law Center at Albany Law School.

The commission said in a preliminary report that the new maintenance formula was adapted from 2007 proposals developed by the American Association of Matrimonial Lawyers (AAML). But in a letter to the commission earlier this year, the president of the AAML's New York chapter, Christopher S. Mattingly of Lipsutz Green Scime Cambria in Buffalo, cautioned that the AAML board of governors never formally approved the guidelines nor intended that they be used as a model for legislation. He said the guidelines were intended to be used as a “tool and reference point” when spousal support was being discussed in settlements.

Ronnie Gouz said the financial formula was designed to apply to permanent maintenance awards, but “morphed” into guidelines on interim maintenance. “You have 20 to 30 years of case law that you need to maintain as best you can the status quo,” Gouz said. “What's the priority? That mortgages and housing costs are paid so people don't lose their homes, maintain health insurance, maintain life insurance and maintain the necessities of life for the kids so they suffer the least.”

The Law Revision Commission was asked by Assemblywoman Helene Weinstein, D-Brooklyn, who chairs the Assembly's Judiciary Committee, to review the maintenance provisions in state law, temporary and permanent, in spring 2010 even before the Legislature adopted no-fault. Weinstein, who insisted on adoption of the maintenance changes as an element of no-fault divorce, said through an aide that she would not comment on the new statutes.

Praise for No-Fault

Meanwhile, matrimonial practitioners say there have been relatively few problems with the introduction a year ago of no-fault divorce.

It has allowed one or the other spouse to declare that a marriage has been “irretrievably” broken for at least six months and, provided that the monetary, child support, visitation and all other issues have been resolved, receive a divorce without having to prove grounds. Rubin said it has created a “much easier and simpler” process for the clients her agency serves who want to extricate themselves from bad marriages.

Alton Abramowitz referred to the “calming effect” that no-fault has had on many of his clients who now are spared the emotionally taxing experience of a trial before divorcing. “That means there is less airing of dirty linen before their peers,” Abramowitz said. “I don't think that juries ever liked listening to this stuff. And to the extent that it was salacious, it was really not that interesting anyway.” No-fault has allowed parties to focus on the “real issues” in divorces, namely a couple's children, if any, and, secondarily, money, Abramowitz said.

Joel Stashenko is a reporter with the New York Law Journal, an ALM sister publication of this newsletter in which an expanded version of this article also appeared.

A new system for calculating interim maintenance awards in matrimonial actions, adopted last year to make no-fault divorce more palatable, is under fire from many attorneys who say it is confusing, and potentially inequitable.

There are three new sections in the Domestic Relations Law (DRL) that have made significant changes in the divorce process. Section 170(7) added a new ground for divorce, permitting the action if one party declares that a marriage “has broken down irretrievably” for at least six months. All economic, property distribution, and child custody and visitation issues between spouses must be resolved before a divorce can be granted. Section 236B(5-a) established a formula for courts to apply when determining trmporary maintenance for spouses with significantly less income than their partners. It also expanded factors cours must consider when deciding permanent post-divorce maintenance. Section 237(1) created the rebuttable presumption that “counsel fees shall be awarded to the less monied spouse” in a divorce action.

Many in Legal Community Are Critical

Several matrimonial lawyers said the new rules are so rigid that they have taken from judges the discretion to decide fair temporary payments while divorce actions are pending.

Alton Abramowitz of Mayerson Stutman Abramowitz said the temporary maintenance legislation “wasn't well-thought out” and was “slapped together at the last minute” as an element of a legislative package that went into effect on Oct. 13, 2010.

“You have a statute that is totally unworkable,” said Ronnie Gouz of Berman Bavero Frucco & Gouz in White Plains.

“Interim maintenance is a mess,” agreed Pamela Sloan of Aronson Mayefsky & Sloan, the chairwoman-elect of the New York State Bar Association's Family Law Section. “It is a complete mess.”

Under the old system, judges used a “balancing act” in determining what temporary maintenance to award, sifting through a couple's income and expense records and testimony about family obligations to arrive at a fair, temporary financial arrangement, said Lee Rosenberg of Saltzman Chetkof & Rosenberg in Garden City. The idea was to maintain the status quo in a couple's financial relationship and pay for necessities like housing and health insurance, while the details of a post-divorce maintenance settlement were worked out.

Now, courts have been directed to consider 19 financial factors and to use a formula to guide their determinations. The statute “caps” at $500,000 the income that can be applied to an interim award. Judges have discretion to discard the formula results but must explain themselves; in practice, many have been reluctant to go beyond the statutory calculation.

But attorneys say that the statute leaves so many gaps that judges are on their own in answering questions that are important to the outcome. “There is no continuity in the interpretation of the statute,” Rosenberg said.

Supreme Court Justice Sharon Townsend in Erie County, who heads the Office of Court Administration's Matrimonial Practice Advisory Committee, said she has confronted several problems with the temporary maintenance process. For instance, she said the new law says the value of income to be distributed equitably is to be factored into the equation as income for interim maintenance purposes. But she argued that the assets that are distributed equitably have always been calculated at the end of a divorce, not at the beginning of the allocation of temporary maintenance.

“How that factors into 'temporary' maintenance, it doesn't make any sense,” she said.

Justice Townsend and Brooklyn Justice Jeffrey Sunshine, the supervising judge for matrimonial matters in the Second Department, both noted that the statute is silent about who pays the “add-on” expenses needed to keep a household running while more permanent arrangements are thrashed out. Should a person receiving temporary maintenance be responsible for paying such things as the mortgage and taxes on the home, the judges asked in separate interviews, or should that come directly out of the more-monied partner's maintenance payment? The statute does not say.

Justice Townsend said she and other judges have been trying to fill in holes in the statute on a case-by-case basis while awaiting clarity from the Law Revision Commission and the courts.

Justice Sunshine said he is not always certain of the veracity of income figures given by spouses. “There is the determination to be made at the pendente lite stage, what is the parties' income?” Justice Sunshine said in an interview. “I am asked at a very early stage to determine what the parties' income is, even when they may or may not be telling the truth as to their [own] or their spouses' income.”

Help for Low-Income Wives

Some lawyers praised the new guidelines, however.

Emily Rubin, the co-supervising attorney of the family law and domestic violence practice at the Legal Aid Society of New York City, said the changes in the law have helped the low-income women her group serves. Where such women often fled marriages without seeking interim maintenance payments, especially if they were in abusive relationships or not represented by a lawyer, the formula-driven maintenance calculations have guaranteed in most cases that women will receive support, Rubin said. “It has dramatically helped our clients. They are getting much fairer awards, much more quickly ' . Is it harder for the payor spouse to pay these awards? Absolutely. But the single father, generally, still has more income, just not as much more.”

Patricia Ann Grant of Grant & Applebaum, who favored tighter guidelines on how maintenance should be awarded to protect women when she was president of the Women's Bar Association in 2010, called the temporary maintenance award statute a “work in progress.” She said the law is too recent to have worked its way through the appellate process for courts to provide guidance. “I think there are disparate results and there haven't been enough cases decided or appealed to know how to deal with them,” Ms. Grant said. “I think this needs to be refined in greater detail.”

The Guidance So Far

More and more lower court opinions have begun to tackle the statute's anomalies. In Scott M. v. Ilona M. , 31 Misc. 3d 353 (2011), for instance, Justice Jeffrey S. Sunshine deviated from the guidelines by ruling that the temporary maintenance total was inadequate to meet the expenses of a wife and the couple's child, and he increased the amount, and also awarded attorney's fees to the woman's attorney.

Other cases, including J.H. v. W.H. , 31 Misc.3d 1203(A) and Jill G. v. Jeffrey G. , 31 Misc.3d 1209(A), have explored questions of how attorney fees, child support and tax consequences should factor into the temporary maintenance formulas.

Meanwhile, court administrators have supplied judges and litigants with an eight-page online worksheet for calculating an appropriate maintenance award.

The Law Revision Commission has been charged with studying changes in the divorce process, including the temporary maintenance formula, and recommending changes. Mary Rose Bailly, executive director of the Law Revision Commission, said the panel has heard from several experts who are urging it to recommend fairness for parties and more flexibility for judges. “I think that there is a desire both to have a way to predict how the matrimonial awards will occur and consistency across similarly situated individuals, but at the same time allowing judges flexibility to deal with the unique and particular circumstances of a marriage,” said Bailly, counsel to the Aging Law and Policy Program of the Government Law Center at Albany Law School.

The commission said in a preliminary report that the new maintenance formula was adapted from 2007 proposals developed by the American Association of Matrimonial Lawyers (AAML). But in a letter to the commission earlier this year, the president of the AAML's New York chapter, Christopher S. Mattingly of Lipsutz Green Scime Cambria in Buffalo, cautioned that the AAML board of governors never formally approved the guidelines nor intended that they be used as a model for legislation. He said the guidelines were intended to be used as a “tool and reference point” when spousal support was being discussed in settlements.

Ronnie Gouz said the financial formula was designed to apply to permanent maintenance awards, but “morphed” into guidelines on interim maintenance. “You have 20 to 30 years of case law that you need to maintain as best you can the status quo,” Gouz said. “What's the priority? That mortgages and housing costs are paid so people don't lose their homes, maintain health insurance, maintain life insurance and maintain the necessities of life for the kids so they suffer the least.”

The Law Revision Commission was asked by Assemblywoman Helene Weinstein, D-Brooklyn, who chairs the Assembly's Judiciary Committee, to review the maintenance provisions in state law, temporary and permanent, in spring 2010 even before the Legislature adopted no-fault. Weinstein, who insisted on adoption of the maintenance changes as an element of no-fault divorce, said through an aide that she would not comment on the new statutes.

Praise for No-Fault

Meanwhile, matrimonial practitioners say there have been relatively few problems with the introduction a year ago of no-fault divorce.

It has allowed one or the other spouse to declare that a marriage has been “irretrievably” broken for at least six months and, provided that the monetary, child support, visitation and all other issues have been resolved, receive a divorce without having to prove grounds. Rubin said it has created a “much easier and simpler” process for the clients her agency serves who want to extricate themselves from bad marriages.

Alton Abramowitz referred to the “calming effect” that no-fault has had on many of his clients who now are spared the emotionally taxing experience of a trial before divorcing. “That means there is less airing of dirty linen before their peers,” Abramowitz said. “I don't think that juries ever liked listening to this stuff. And to the extent that it was salacious, it was really not that interesting anyway.” No-fault has allowed parties to focus on the “real issues” in divorces, namely a couple's children, if any, and, secondarily, money, Abramowitz said.

Joel Stashenko is a reporter with the New York Law Journal, an ALM sister publication of this newsletter in which an expanded version of this article also appeared.