Family Law Annual Review by Michael & David Dikman

MAINTENANCE LAWS

In 2010 we reviewed the provisions of the then new DRL § 236B, sections 5-a & 6-a, establishing temporary maintenance guidelines. The N.Y.S. Law Revision Commission was directed to:

Review and assess the economic consequences of divorce on parties; Review the maintenance laws and their administration to determine their impact on post marital economic disparities and the laws’ effectiveness in achieving the state’s goals; and
Recommend legislation deemed necessary to achieve those goals.

A preliminary report to the Legislature & Governor was to be made no later than 9 months from the effective date with a final report to be rendered by December 31, 2011. There was a preliminary report, but that was delayed until May 11, 2011 and did nothing more than review the provisions and history, various problems and positions involved. There was no recommendation for any legislation. The final report date (December 31, 2011) came, went and was extended several times. Last year at this writing we were still awaiting the final report. In this column we had said:

“the myriad of different, relevant facts in each case, and the application    of a “reality test” (actually computing what disposable income will be left for each spouse upon application of the guidelines) have convinced a number of judges that the temporary maintenance guidelines did in fact result in unjust or inappropriate awards, which they refused to make. More and more cases continue to be reported, where the judges are “deviating,” and in different ways and upon different analyses. The result is that although it is taking the judges far more time to construct their decisions, they are as disparate and unpredictable as they were before the statute became effective. The statute has been criticized inasmuch as the application of the guidelines, based upon an automatic, mathematical calculation, basically creates a shift in resources, rather than the prior goal of tiding over the more needy party.”

We commented that the cases regarding temporary maintenance , were very “fact intensive,”  and that it would be hard to find two cases presenting precisely the same facts , relative to the parties’ incomes, assets, needs, ages, health, marriage duration, number and ages of children, type of residence, or whether the parties are still residing together, among others. Also, in view of the vastly varying    fact patterns and the substantial number of matrimonial judges making decisions throughout the State, we opined that the value of any one Supreme Court decision, as a precedent, will be minimal, since not binding upon judges of coordinate jurisdiction. We hoped that “by next year we should have some guidance from the Appellate Division.” But we still don’t have too much. While there have been a number of carefully considered and well written decisions on this topic, during the last three years, there is still a substantial amount of uncertainty as to what any particular court will decide in any one case. The Appellate Divisions have sent cases back when decisions have not sufficiently addressed and discussed either what the “presumptive award” would be by a strict application of the guidelines or the factors relied upon to deviate therefrom.

A full discussion of the substantive and procedural requirements is found in GONCALVES v. GONCALVES, 105 A.D. 3d 901, 963 N.Y.S. 2d 686 (App. Div., 2nd Dept.). In LENOX v. WEBERMAN, 103 A.D. 3d 550, 960 N.Y.S. 2d 89 (App. Div. 1st Dept.) the trial court was said to have explained its deviation from the “presumptive amount,” based upon the 19 statutory factors, as a result of which was the affirmance of a $38,000 a month award. In an obviously much less monied case the same court affirmed a $500 temporary maintenance award to the husband for six months in WOODFORD v. WOODFORD, 100 A.D. 3d 875, 955 N.Y.S. 2d 355 (1st Dept.). Again in TAWIL v. TAWIL, 100 A.D. 3d 520, 953 N.Y.S. 2d 856 (1st Dept.) the lower court award of $12,457.25 per month as temporary maintenance was found to have been properly determined.

However, numerous Appellate Division decisions, including those above, have omitted a sufficient statement of facts to provide some value as precedent s. The long-awaited final Law Revision Commission report was issued on May 15, 2013. It was generally believed that the Commission would not recommend a wholesale elimination of the maintenance guideline concept, notwithstanding many lawyer groups’ belief that is what should be done. It should be remembered that the original law, while drafted to relate to maintenance awards at the end of cases, was so problematic that it was hastily revised to speak only in terms of temporary maintenance. The revision was not done with what might be called substantial care, and a number of provisions that obviously could or should not relate to temporary awards remained in the language of the statute … for example a consideration of the equitable distribution award, which obviously could not be known when a temporary maintenance order was being drafted.

At the outset, the final report acknowledges that two primary desires: a) individualized treatment for each marriage and b) predictability and consistency of awards, are difficult to reconcile “because those goals point policy makers in different directions.” The Commission attempted to strike some type of balance between those two approaches. Its conclusion was that we had to take into account the differences between cases with limited assets and income and those involving substantial assets and income. In fact, the commission noted that in the limited money cases it is “less likely that either party is represented by counsel”  whereas in substantial money cases “the court has more variables to consider, more options in crafting relief, and both parties are more likely to have counsel.” We would wager that nobody on the Commission, who adopted that comment about less monied litigants not having counsel, ever practiced in Queens County! We doubt there is any matrimonial lawyer in Queens who has not been retained in cases involving very limited financial circumstances from time to time.

In any event, the major change recommended by the Commission, in line with its starting premise, was to start with a formula for combined income at or below $136,000, a level it said reflected the income of a majority of New Yorkers, and which was consistent with the amount now effective in child support guideline computations. Where the combined income exceeds $136,000 the court would have more freedom and discretion to apply a set of statutory factors to the excess. It would also retain the flexibility to deviate from the formula (above or below the $136,000) were found to be unjust or inappropriate. There was no recommended change in the mathematics of the formula set forth in the current law for computing temporary maintenance, and that same formula was retained in the computation of permanent maintenance. In both instances the requirement that deviations based upon the statutory factors had to be explained in the decision was included. The recommendations were to apply to both temporary and permanent orders. In temporary orders the court was supposed to “allocate the responsibilities of each party for the family’s current expenses during the pendency of the action.” The temporary award would generally have a duration matching that of the divorce proceeding, but should be limited so as not to exceed the length of a short term marriage.

In the report, if any recommendation received the widespread approval of the matrimonial bar it was the statement that “Based on a widespread consensus ” it was recommended that “one party ‘s ‘increased earning capacity’ no longer be considered as a marital asset in equitable distribution under section 326B (5).” The report acknowledges that this enhanced earnings concept (distributing the established value of licenses and degrees, initiated not by statute but by the landmark Court of Appeals decision in O ‘BRIEN v. O’BRIEN, 66 NY 2d 576, 498 NYS 2d 743) “created much dissatisfaction and litigation because of the asset’s intangible nature, the speculative nature of its ‘value’ as well as the costs associated with valuations, and problems of double counting increased earnings in awards of post-divorce income and child support.” The recommendation was that any contribution to the career of one party by the other should only be factored into the maintenance considerations.

As to the duration of maintenance awards, various factors were set forth, which are essentially those considered and discussed in the case and statutory law before the more recent maintenance legislation (e.g. length or marriage, time necessary for the needy spouse to become self-supporting, normal retirement age, available retirement benefits, health care barriers, child care responsibilities and age). The recommendations were to be the same for orders out of both the Supreme and Family Courts. They did not retain the much criticized former provision that remarriage would not necessarily terminate maintenance.

But, of course, this report is only a recommendation, and to what extent it may find its way into future legislation is quite another story. The consensus of opinion we have heard is that there will, indeed be some legislation in this area, presumably before the end of this session. But the bills under consideration vary widely, some adopting the reduction in the “cap” from $500,000 to $136,000, others not, and still others establishing amounts somewhere in between.

So, for the near future, prior to any corrective or modifying legislation we are still stuck in the absurd position where:

a) The court is required to consider guidelines for child support at the end of cases, in the final judgment, but not necessarily in making temporary awards;

b) The court is required to consider guidelines for maintenance in making temporary awards, but not at the end of cases, in the final judgment; and

c) When one works out the math in cases where the court might opt (as is within its discretion) to use the current guidelines for both child support and maintenance, after income tax liabilities , more likely than not the payor spouse will wind up with less disposable income than the payee. One may ask: How did a group of legislators, the vast majority of whom are attorneys, ever allow us to get into this situation. We regret to opine that the answer is a primary concern for “politics” rather than good law or the best interests of the public.

PRELIMINARY CONFERENCES

Last year we reported on the change that was going to be made starting in January, 2013, regarding the conduct of Preliminary Conferences in Queens County.

Referee Lisa J. Friederwitzer was assigned the task of presiding over a new, centralized Matrimonial P.C. Part, which was to conduct all P.C.’s which have not previously been scheduled before the matrimonial judges, thus freeing their time and hopefully, streamlining and making the P.C. process more meaningful and productive. It was expected that we lawyers refrain from coming to the P.C. ‘s to more or less play a waiting game, not having yet completed Net Worth Statements or produced basic financial records, and expecting to have a schedule imposed at the P.C., which will only require later action. The intent and expectation was that the P.C. ‘s, which would be able to be scheduled sooner , and with staggered appearance times, will result in early agreements or orders for various issues, including support, parental access, etc. The court is not limited by the absence of any underlying motion, although it will be expected that pleadings are served, seeking various forms of relief. Temporary orders were to be made to afford parties relief or partial relief in various areas, without long waiting times. The result is that in cases where the amount of the parties’ income is relatively clear and where sufficient documentation is presented, temporary orders may well be issued at the P.C., absent formal motions.

Requests for adjournments must be made only by E -Mail to QSMATPC@courts.state.ny.us.

In practice, Preliminary Conferences are scheduled the first time a motion is made. As a result, where a case starts off with an early motion, sometimes not involving financial matters, parties are not all coming in with Net Worth Statements or other financial documents. But the conferences are being handled expeditiously, and in cases where financials are not exchanged, time limits are fixed and cases are moving along. At this point we have heard nothing negative about the process. Quite the contrary, the P.C.’s are scheduled without much delay, handled competently and the judges are spared that one component of their quite over-burdened responsibilities (e.g. conferences, motions, Order to Show Cause submissions, hearings, trials, decisions and orders). There is no complaint about Queens County matrimonial practice more often heard than how long it takes to get a decision, a trial, a next conference date, etc. However, we are hard pressed to be able to identify any county in which the number of matrimonial cases assigned, per judge is higher than in Queens. Our three judges are not out playing golf or lounging around. They are working full time, as are their staffs. But you can only do so much in a day and can only deal with one case at a time. As has been the case for years, we need more judges handling our family law cases, and they are hard to come by given the financial and physical space limitations under which our court is forced to operate. The same situation applies to the number of matrimonial clerks we have, the shortage of which is a large factor in the extremely long time it takes to have judgments or submitted orders signed and entered. Who knows – perhaps by next year’s article we might at least have another elevator in operation!

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