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New York State's New Legislation Impacts The Financial Concerns of Family Law

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 21st 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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