The Time Has Come for Maintenance Guidelines

Those of us who are members of the “baby boom generation,” or the “children of the Sixties,” have witnessed half a century of evolution in the world of family law. When many of us entered high school, the only ground for divorce in New York state, for instance, was also a criminal act ' adultery. By the time we graduated college, our legislature had added abandonment, as well as cruel and inhuman treatment, as additional grounds to enable previously “trapped” spouses to escape bad marriages. Like Chicken Little of our childhoods, crying, “the sky is falling, the sky is falling,” critics of this sea change in our approach to divorce proclaimed the demise of marriage as an institution that was a foundation of our society.

Today, few would question the right of our citizens to terminate the “bonds of matrimony” (a phrase that itself alludes to indentured servitude). For some 40 years, doomsayers managed to prevent New York from joining the No Fault Divorce movement that had begun in California. The cataclysm that opponents predicted when Irretrievable Breakdown of the Marriage Relationship was added as a basis for divorce in 2010 has yet to be witnessed; no calamity has befallen the people of New York, just as none occurred back in 1966. The perplexing and frustrating complexities that pervaded fault-based divorce gave way to a result-oriented process that has muffled the accusations that often formed a roadblock to reasoned solutions of issues such as child custody, division of marital property, child support and spousal maintenance. While judges still are called upon to act as referees, they are no longer compelled to participate in the soap opera that grounds trials presented to them.

Like the issues of fault and no fault divorce, predictions of “doom and gloom” have followed each new development in the law, from equitable distribution of property and rehabilitative maintenance in the 1980s to child support guidelines in later years. Nevertheless, matrimonial law has changed for the better with each new development, providing relief time and again for stakeholders, particularly the poor and middle class, by affording them justice from a system in which many cannot reasonably afford legal counsel.

Maintenance Guidelines

In Spring 2014, the Family Law Section of the NYS Bar Association successfully lobbied the legislature to hold off on enacting Maintenance Guidelines legislation in a form that many members found untenable, while some recognized the inevitability of the ultimate adoption of some form of guidelines legislation. Subsequently, in June 2014, following his appointment as Chair of Chief Administrative Judge A. Gail Prudenti's new Matrimonial Practice Advisory and Rules Committee, Judge Jeffrey S. Sunshine informally brought together lawyers representing the dissenting groups in an attempt to achieve a compromise that takes into account the various competing and conflicting concerns of the constituencies within those groups.

Over the next several months, a series of meetings were held with participation by representatives of the Family Law Section, the New York Maintenance Standards Coalition, the Women's Bar Association of the State of New York, and the New York Chapter of the American Academy of Matrimonial Lawyers. The result of the group's collective efforts is a proposed bill that is now being circulated. It was crafted based upon reasonable and fair compromises, including recognition of the need to address the concerns of the poverty communities, the domestic violence communities, families with middle class economics and families with exceptional wealth. The resulting bill was achieved with no acrimony based on a shared goal of “doing right” by all concerned. Some of the highlights of the proposal are:

• The Income Cap for the formula portion of Temporary Maintenance Awards is lowered from $500,000 to $175,000 of the payor's income. The same $175,000 cap would apply to Post-Divorce Maintenance Awards.
• There will be two formulas: one where the payor is also paying child support to his or her spouse, and one where child support is not being paid
• Where there is income over the cap, additional maintenance “may” be awarded after consideration of one or more factors.
• Temporary maintenance terminates no later than the issuance of a judgment of divorce or the death of either party, clarifying that the court has the power to limit the duration of temporary maintenance.
• Post-divorce maintenance terminates on the death of either party or the remarriage of the payee former spouse.
• The court can allocate the responsibility for payment of specific family expenses between the parties when formulating its maintenance award.
• The definition of income for post-divorce maintenance will include income from income-producing property that is being equitably distributed.
• A durational formula has been included that is “advisory” only, and the durational periods contain ranges to guide judges in exercising their discretion, while not binding them to those formulas. Non-durational maintenance can still be awarded in appropriate cases.
• In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age.
• Actual or partial retirement will be a ground for modification assuming it results in a substantial diminution of income.
• Elimination of all forms of enhanced earning capacity as a marital asset ' i.e. , a legislative annulment of the infamous O'Brien theory.

Conclusion

Suffice it to say that, despite the doomsayers, this legislative proposal should be embraced by family law practitioners and matrimonial judges alike, for it provides a framework that will surely enable our system of divorce to better serve the families of litigants, and of those seeking reasoned, non-litigated settlements. When the legislature takes up this proposal, all of us who toil in this field on a daily basis should join in the chorus of support for its enactment.

Alton L. Abramowitz is a senior partner at New York's Mayerson Abramowitz & Kahn.

Those of us who are members of the “baby boom generation,” or the “children of the Sixties,” have witnessed half a century of evolution in the world of family law. When many of us entered high school, the only ground for divorce in New York state, for instance, was also a criminal act ' adultery. By the time we graduated college, our legislature had added abandonment, as well as cruel and inhuman treatment, as additional grounds to enable previously “trapped” spouses to escape bad marriages. Like Chicken Little of our childhoods, crying, “the sky is falling, the sky is falling,” critics of this sea change in our approach to divorce proclaimed the demise of marriage as an institution that was a foundation of our society.

Today, few would question the right of our citizens to terminate the “bonds of matrimony” (a phrase that itself alludes to indentured servitude). For some 40 years, doomsayers managed to prevent New York from joining the No Fault Divorce movement that had begun in California. The cataclysm that opponents predicted when Irretrievable Breakdown of the Marriage Relationship was added as a basis for divorce in 2010 has yet to be witnessed; no calamity has befallen the people of New York, just as none occurred back in 1966. The perplexing and frustrating complexities that pervaded fault-based divorce gave way to a result-oriented process that has muffled the accusations that often formed a roadblock to reasoned solutions of issues such as child custody, division of marital property, child support and spousal maintenance. While judges still are called upon to act as referees, they are no longer compelled to participate in the soap opera that grounds trials presented to them.

Like the issues of fault and no fault divorce, predictions of “doom and gloom” have followed each new development in the law, from equitable distribution of property and rehabilitative maintenance in the 1980s to child support guidelines in later years. Nevertheless, matrimonial law has changed for the better with each new development, providing relief time and again for stakeholders, particularly the poor and middle class, by affording them justice from a system in which many cannot reasonably afford legal counsel.

Maintenance Guidelines

In Spring 2014, the Family Law Section of the NYS Bar Association successfully lobbied the legislature to hold off on enacting Maintenance Guidelines legislation in a form that many members found untenable, while some recognized the inevitability of the ultimate adoption of some form of guidelines legislation. Subsequently, in June 2014, following his appointment as Chair of Chief Administrative Judge A. Gail Prudenti's new Matrimonial Practice Advisory and Rules Committee, Judge Jeffrey S. Sunshine informally brought together lawyers representing the dissenting groups in an attempt to achieve a compromise that takes into account the various competing and conflicting concerns of the constituencies within those groups.

Over the next several months, a series of meetings were held with participation by representatives of the Family Law Section, the New York Maintenance Standards Coalition, the Women's Bar Association of the State of New York, and the New York Chapter of the American Academy of Matrimonial Lawyers. The result of the group's collective efforts is a proposed bill that is now being circulated. It was crafted based upon reasonable and fair compromises, including recognition of the need to address the concerns of the poverty communities, the domestic violence communities, families with middle class economics and families with exceptional wealth. The resulting bill was achieved with no acrimony based on a shared goal of “doing right” by all concerned. Some of the highlights of the proposal are:

• The Income Cap for the formula portion of Temporary Maintenance Awards is lowered from $500,000 to $175,000 of the payor's income. The same $175,000 cap would apply to Post-Divorce Maintenance Awards.
• There will be two formulas: one where the payor is also paying child support to his or her spouse, and one where child support is not being paid
• Where there is income over the cap, additional maintenance “may” be awarded after consideration of one or more factors.
• Temporary maintenance terminates no later than the issuance of a judgment of divorce or the death of either party, clarifying that the court has the power to limit the duration of temporary maintenance.
• Post-divorce maintenance terminates on the death of either party or the remarriage of the payee former spouse.
• The court can allocate the responsibility for payment of specific family expenses between the parties when formulating its maintenance award.
• The definition of income for post-divorce maintenance will include income from income-producing property that is being equitably distributed.
• A durational formula has been included that is “advisory” only, and the durational periods contain ranges to guide judges in exercising their discretion, while not binding them to those formulas. Non-durational maintenance can still be awarded in appropriate cases.
• In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age.
• Actual or partial retirement will be a ground for modification assuming it results in a substantial diminution of income.
• Elimination of all forms of enhanced earning capacity as a marital asset ' i.e. , a legislative annulment of the infamous O'Brien theory.

Conclusion

Suffice it to say that, despite the doomsayers, this legislative proposal should be embraced by family law practitioners and matrimonial judges alike, for it provides a framework that will surely enable our system of divorce to better serve the families of litigants, and of those seeking reasoned, non-litigated settlements. When the legislature takes up this proposal, all of us who toil in this field on a daily basis should join in the chorus of support for its enactment.

Alton L. Abramowitz is a senior partner at New York's Mayerson Abramowitz & Kahn.