S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5678

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 27, 2015
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Judiciary

AN  ACT to amend the domestic relations law and the family court act, in
  relation to the duration and amount  of  maintenance  and  of  spousal
  support

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph a of subdivision 1 of part B of  section  236  of
the  domestic  relations  law,  as amended by chapter 371 of the laws of
2010, is amended to read as follows:
  a. The term "maintenance" shall mean payments provided for in a  valid
agreement between the parties or awarded by the court in accordance with
the  provisions  of subdivisions five-a and six of this part, to be paid
at fixed intervals for a definite or indefinite period of time,  but  an
award  of  maintenance shall terminate upon the death of either party or
upon the [recipient's]  PAYEE'S  valid  or  invalid  marriage,  or  upon
modification  pursuant  to  paragraph  [(b)]  B  of  subdivision nine of
[section two hundred thirty-six of] this part  or  section  two  hundred
forty-eight of this chapter.
  S  2.  Subparagraph  7  of  paragraph  d of subdivision 5 of part B of
section 236 of the domestic relations law, as amended by chapter 281  of
the  laws  of 1980 and as renumbered by chapter 229 of the laws of 2009,
is amended to read as follows:
  (7) any equitable  claim  to,  interest  in,  or  direct  or  indirect
contribution  made  to  the  acquisition of such marital property by the
party not having title, including  joint  efforts  or  expenditures  and
contributions and services as a spouse, parent, wage earner and homemak-
er,  and to the career or career potential of the other party. THE COURT
SHALL NOT CONSIDER AS MARITAL PROPERTY SUBJECT TO DISTRIBUTION THE VALUE
OF A SPOUSE'S ENHANCED EARNING CAPACITY ARISING FROM A LICENSE,  DEGREE,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10788-02-5
              

S. 5678                             2

CELEBRITY  GOODWILL,  OR CAREER ENHANCEMENT.  HOWEVER, IN ARRIVING AT AN
EQUITABLE DIVISION OF MARITAL PROPERTY, THE  COURT  SHALL  CONSIDER  THE
DIRECT  OR INDIRECT CONTRIBUTIONS TO THE DEVELOPMENT DURING THE MARRIAGE
OF THE ENHANCED EARNING CAPACITY OF THE OTHER SPOUSE;
  S  3.  Subdivision  5-a  of  part  B  of  section  236 of the domestic
relations law, as added by chapter 371 of the laws of 2010,  is  amended
to read as follows:
  5-a.  Temporary  maintenance  awards. a. Except where the parties have
entered into an agreement [pursuant to subdivision three of  this  part]
providing for maintenance PURSUANT TO SUBDIVISION THREE OF THIS PART, in
any  matrimonial  action  the  court, UPON APPLICATION BY A PARTY, shall
make its award for temporary maintenance pursuant to the  provisions  of
this subdivision.
  b.  For  purposes of this subdivision, the following definitions shall
be used:
  (1) "Payor" shall mean the spouse with the higher income.
  (2) "Payee" shall mean the spouse with the lower income.
  (3) "Length of marriage" shall  mean  the  period  from  the  date  of
marriage until the date of commencement of action.
  (4) "Income" shall mean[:
  (a)] income as defined in the child support standards act and codified
in  section  two  hundred forty of this article and section four hundred
thirteen of the family court act[; and
  (b) income from income producing property to be  distributed  pursuant
to subdivision five of this part] WITHOUT SUBTRACTING ALIMONY OR MAINTE-
NANCE  ACTUALLY  PAID  OR  TO BE PAID TO A SPOUSE THAT IS A PARTY TO THE
INSTANT ACTION PURSUANT TO SUBCLAUSE (C) OF CLAUSE (VII) OF SUBPARAGRAPH
FIVE OF PARAGRAPH (B) OF SUBDIVISION ONE-B OF SECTION TWO HUNDRED  FORTY
OF  THIS  ARTICLE AND SUBCLAUSE (C) OF CLAUSE (VII) OF SUBPARAGRAPH FIVE
OF PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION FOUR HUNDRED THIRTEEN  OF
THE FAMILY COURT ACT AND WITHOUT SUBTRACTING SPOUSAL SUPPORT PAID PURSU-
ANT TO SECTION FOUR HUNDRED TWELVE OF SUCH ACT.
  (5)  "Income  cap"  shall  mean up to and including [five hundred] ONE
HUNDRED SEVENTY-FIVE thousand dollars  of  the  payor's  annual  income;
provided, however, beginning January thirty-first, two thousand [twelve]
SIXTEEN  and every two years thereafter, the [payor's annual] income CAP
amount shall increase  by  the  [product]  SUM  of  the  average  annual
percentage  changes  in the consumer price index for all urban consumers
(CPI-U) as published by the United States department of labor bureau  of
labor statistics for the PRIOR two [year period] YEARS MULTIPLIED BY THE
THEN  INCOME  CAP  AND THEN rounded to the nearest one thousand dollars.
The office of court  administration  shall  determine  and  publish  the
income cap.
  (6)  "Guideline  amount of temporary maintenance" shall mean the [sum]
DOLLAR AMOUNT derived by the application of paragraph c  OR  D  of  this
subdivision.
  (7)  ["Guideline duration" shall mean the durational period determined
by the application of paragraph d  of  this  subdivision]  "SELF-SUPPORT
RESERVE"  SHALL  MEAN  THE  SELF-SUPPORT RESERVE AS DEFINED IN THE CHILD
SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO HUNDRED FORTY OF  THIS
ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE FAMILY COURT ACT.
  (8) ["Presumptive award" shall mean the guideline amount of the tempo-
rary  maintenance  award for the guideline duration prior to the court's
application of any adjustment factors as provided in subparagraph one of
paragraph e of this subdivision.

S. 5678                             3

  (9) "Self-support reserve" shall  mean  the  self-support  reserve  as
defined  in  the child support standards act and codified in section two
hundred forty of this article and section four hundred thirteen  of  the
family court act] "AGREEMENT" SHALL HAVE THE SAME MEANING AS PROVIDED IN
SUBDIVISION THREE OF THIS PART.
  c. [The] WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME
CAP, THE court shall determine the guideline amount of temporary mainte-
nance  [in accordance with the provisions of this paragraph after deter-
mining the income of the parties] AS FOLLOWS:
  (1) Where [the payor's income is up to and including the  income  cap]
CHILD  SUPPORT  WILL  BE PAID FOR CHILDREN OF THE MARRIAGE AND WHERE THE
PAYOR AS DEFINED IN THIS SUBDIVISION IS ALSO  THE  NON-CUSTODIAL  PARENT
PURSUANT TO THE CHILD SUPPORT STANDARDS ACT:
  (a)  the  court  shall  subtract  [twenty]  TWENTY-FIVE percent of the
PAYEE'S income [of the  payee]  from  [thirty]  TWENTY  percent  of  the
PAYOR'S income [up to the income cap of the payor].
  (b) the court shall then multiply the sum of the payor's income [up to
and  including  the income cap] and [all of] the payee's income by forty
percent.
  (c) the court shall subtract the PAYEE'S income [of  the  payee]  from
the amount derived from clause (b) of this subparagraph.
  (d)  the COURT SHALL DETERMINE THE LOWER OF THE TWO AMOUNTS DERIVED BY
CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH.
  (E) THE guideline amount of temporary maintenance shall be the  [lower
of  the  amounts]  AMOUNT  determined  by  [clauses  (a) and (c) of this
subparagraph;] CLAUSE (D) OF  THIS  SUBPARAGRAPH  EXCEPT  THAT,  if  the
amount  determined  by  clause  [(c)  of  this subparagraph] (D) OF THIS
SUBPARAGRAPH is less than or equal to  zero,  the  guideline  amount  OF
TEMPORARY MAINTENANCE shall be zero dollars.
  (F)  TEMPORARY  MAINTENANCE SHALL BE CALCULATED PRIOR TO CHILD SUPPORT
BECAUSE THE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE SUBTRACTED FROM THE
PAYOR'S INCOME AND ADDED TO THE PAYEE'S INCOME AS  PART  OF  THE  CALCU-
LATION OF THE CHILD SUPPORT OBLIGATION.
  (2) Where [the income of the payor exceeds the income cap:
  (a)  the court shall determine the guideline amount of temporary main-
tenance for that portion of the payor's income that is up to and includ-
ing the income cap according to subparagraph one of this paragraph, and,
for the payor's income in excess of the  income  cap,  the  court  shall
determine  any  additional  guideline  amount  of  temporary maintenance
through consideration of the following factors:
  (i) the length of the marriage;
  (ii) the substantial differences in the incomes of the parties;
  (iii) the standard of living of the  parties  established  during  the
marriage;
  (iv) the age and health of the parties;
  (v) the present and future earning capacity of the parties;
  (vi) the need of one party to incur education or training expenses;
  (vii) the wasteful dissipation of marital property;
  (viii) the transfer or encumbrance made in contemplation of a matrimo-
nial action without fair consideration;
  (ix)  the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
  (x) acts by one party against another that have inhibited or  continue
to  inhibit  a  party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to  acts  of  domestic

S. 5678                             4

violence  as provided in section four hundred fifty-nine-a of the social
services law;
  (xi) the availability and cost of medical insurance for the parties;
  (xii)  the  care of the children or stepchildren, disabled adult chil-
dren or stepchildren, elderly parents or in-laws that has  inhibited  or
continues  to  inhibit  a  party's earning capacity or ability to obtain
meaningful employment;
  (xiii) the inability of one party to obtain meaningful employment  due
to age or absence from the workforce;
  (xiv)  the  need  to  pay  for exceptional additional expenses for the
child or children, including, but not limited to,  schooling,  day  care
and medical treatment;
  (xv) the tax consequences to each party;
  (xvi) marital property subject to distribution pursuant to subdivision
five of this part;
  (xvii)  the  reduced  or  lost  earning  capacity of the party seeking
temporary maintenance as a result of having foregone or  delayed  educa-
tion, training, employment or career opportunities during the marriage;
  (xviii)  the contributions and services of the party seeking temporary
maintenance as a spouse, parent, wage earner and homemaker  and  to  the
career or career potential of the other party; and
  (xix) any other factor which the court shall expressly find to be just
and proper.
  (b)  In  any  decision  made  pursuant to this subparagraph, the court
shall set forth the factors it considered and the reasons for its  deci-
sion.  Such written order may not be waived by either party or counsel.]
CHILD  SUPPORT  WILL  NOT BE PAID FOR CHILDREN OF THE MARRIAGE, OR WHERE
CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE PAYOR AS
DEFINED IN THIS SUBDIVISION IS THE  CUSTODIAL  PARENT  PURSUANT  TO  THE
CHILD SUPPORT STANDARDS ACT:
  (A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
  (B)  THE  COURT  SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
  (C) THE COURT SHALL  SUBTRACT  THE  PAYEE'S  INCOME  FROM  THE  AMOUNT
DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
  (D)  THE COURT SHALL DETERMINE THE LOWER OF THE TWO AMOUNTS DERIVED BY
CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH.
  (E) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE  AMOUNT
DETERMINED BY CLAUSE (D) OF THIS SUBPARAGRAPH EXCEPT THAT, IF THE AMOUNT
DETERMINED  BY  CLAUSE (D) OF THIS SUBPARAGRAPH IS LESS THAN OR EQUAL TO
ZERO, THE GUIDELINE  AMOUNT  OF  TEMPORARY  MAINTENANCE  SHALL  BE  ZERO
DOLLARS.
  (F) IF CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE
PAYOR AS DEFINED IN THIS SUBDIVISION IS THE CUSTODIAL PARENT PURSUANT TO
THE  CHILD  SUPPORT STANDARDS ACT, TEMPORARY MAINTENANCE SHALL BE CALCU-
LATED PRIOR TO CHILD SUPPORT BECAUSE THE AMOUNT OF TEMPORARY MAINTENANCE
SHALL BE SUBTRACTED FROM THE PAYOR'S INCOME PURSUANT TO THIS SUBDIVISION
AND ADDED TO THE PAYEE'S INCOME PURSUANT TO THIS SUBDIVISION AS PART  OF
THE CALCULATION OF THE CHILD SUPPORT OBLIGATION.
  [(3)  Notwithstanding  the  provisions  of  this  paragraph, where the
guideline amount of  temporary  maintenance  would  reduce  the  payor's
income  below the self-support reserve for a single person, the presump-
tive amount of the guideline amount of temporary  maintenance  shall  be
the  difference between the payor's income and the self-support reserve.

S. 5678                             5

If the payor's income is below the  self-support  reserve,  there  is  a
rebuttable presumption that no temporary maintenance is awarded.]
  d.  [The]  WHERE  THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE court
shall determine the guideline [duration] AMOUNT of temporary maintenance
[by considering the length of the marriage. Temporary maintenance  shall
terminate  upon  the  issuance  of the final award of maintenance or the
death of either party, whichever occurs first] AS FOLLOWS:
  (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPH  C
OF  THIS SUBDIVISION FOR THE INCOME OF THE PAYOR UP TO AND INCLUDING THE
INCOME CAP; AND
  (2) FOR INCOME EXCEEDING THE CAP, THE AMOUNT OF ADDITIONAL MAINTENANCE
AWARDED, IF ANY, SHALL BE WITHIN THE DISCRETION OF THE COURT WHICH SHALL
TAKE INTO CONSIDERATION ANY ONE OR MORE OF  THE  FACTORS  SET  FORTH  IN
SUBPARAGRAPH ONE OF PARAGRAPH H OF THIS SUBDIVISION; AND
  (3)  THE  COURT  SHALL  SET  FORTH  THE  FACTORS IT CONSIDERED AND THE
REASONS FOR ITS DECISION IN WRITING OR ON  THE  RECORD.  SUCH  DECISION,
WHETHER  IN  WRITING OR ON THE RECORD, MAY NOT BE WAIVED BY EITHER PARTY
OR COUNSEL.
  e. [(1) The court shall order the presumptive award of temporary main-
tenance in accordance with paragraphs  c  and  d  of  this  subdivision,
unless  the court finds that the presumptive award is unjust or inappro-
priate and  adjusts  the  presumptive  award  of  temporary  maintenance
accordingly based upon consideration of the following factors:
  (a)  the  standard  of  living  of  the parties established during the
marriage;
  (b) the age and health of the parties;
  (c) the earning capacity of the parties;
  (d) the need of one party to incur education or training expenses;
  (e) the wasteful dissipation of marital property;
  (f) the transfer or encumbrance made in contemplation of a matrimonial
action without fair consideration;
  (g) the existence and duration of a pre-marital joint household  or  a
pre-divorce separate household;
  (h)  acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability  to  obtain  meaningful
employment.  Such  acts  include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the  social
services law;
  (i) the availability and cost of medical insurance for the parties;
  (j)  the care of the children or stepchildren, disabled adult children
or stepchildren, elderly  parents  or  in-laws  that  has  inhibited  or
continues  to  inhibit  a  party's earning capacity or ability to obtain
meaningful employment;
  (k) the inability of one party to obtain meaningful employment due  to
age or absence from the workforce;
  (l)  the need to pay for exceptional additional expenses for the child
or children, including, but not limited  to,  schooling,  day  care  and
medical treatment;
  (m) the tax consequences to each party;
  (n)  marital  property subject to distribution pursuant to subdivision
five of this part;
  (o) the reduced or lost earning capacity of the party  seeking  tempo-
rary  maintenance  as  a result of having foregone or delayed education,
training, employment or career opportunities during the marriage;

S. 5678                             6

  (p) the contributions and services  of  the  party  seeking  temporary
maintenance  as  a  spouse, parent, wage earner and homemaker and to the
career or career potential of the other party; and
  (q)  any  other factor which the court shall expressly find to be just
and proper.
  (2) Where the court finds that  the  presumptive  award  of  temporary
maintenance  is  unjust  or  inappropriate  and  the  court  adjusts the
presumptive award of temporary maintenance pursuant to  this  paragraph,
the  court  shall set forth, in a written order, the amount of the unad-
justed presumptive  award  of  temporary  maintenance,  the  factors  it
considered,  and  the  reasons  that  the court adjusted the presumptive
award of temporary maintenance. Such written order shall not  be  waived
by either party or counsel.
  (3)  Where  either  or both parties are unrepresented, the court shall
not enter a temporary maintenance order unless the  unrepresented  party
or  parties  have  been  informed  of the presumptive award of temporary
maintenance] NOTWITHSTANDING THE PROVISIONS OF THIS  SUBDIVISION,  WHERE
THE  GUIDELINE  AMOUNT OF TEMPORARY MAINTENANCE WOULD REDUCE THE PAYOR'S
INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
AMOUNT OF TEMPORARY MAINTENANCE SHALL  BE  THE  DIFFERENCE  BETWEEN  THE
PAYOR'S  INCOME  AND THE SELF-SUPPORT RESERVE.  IF THE PAYOR'S INCOME IS
BELOW THE SELF-SUPPORT RESERVE, THERE SHALL BE A REBUTTABLE  PRESUMPTION
THAT NO TEMPORARY MAINTENANCE IS AWARDED.
  f.  [A  validly  executed agreement or stipulation voluntarily entered
into between the parties in an action commenced after the effective date
of this subdivision presented to the court for incorporation in an order
shall include a provision stating that the parties have been advised  of
the  provisions  of  this  subdivision,  and  that the presumptive award
provided for therein results in the correct amount of temporary  mainte-
nance. In the event that such agreement or stipulation deviates from the
presumptive award of temporary maintenance, the agreement or stipulation
must specify the amount that such presumptive award of temporary mainte-
nance  would  have been and the reason or reasons that such agreement or
stipulation does not provide for payment of that amount. Such  provision
may not be waived by either party or counsel.  Nothing contained in this
subdivision  shall  be  construed  to alter the rights of the parties to
voluntarily enter into validly executed agreements or stipulations which
deviate from the presumptive award  of  temporary  maintenance  provided
such  agreements  or  stipulations  comply  with  the provisions of this
subdivision.] The court shall[, however, retain discretion with  respect
to  temporary,  and  post-divorce  maintenance  awards  pursuant to this
section. Any court order incorporating a validly executed  agreement  or
stipulation which deviates from the presumptive award of temporary main-
tenance  shall  set forth the court's reasons for such deviation] DETER-
MINE THE DURATION OF TEMPORARY MAINTENANCE BY CONSIDERING THE LENGTH  OF
THE MARRIAGE.
  g. [When a party has defaulted and/or the court is otherwise presented
with  insufficient  evidence  to determine gross income, the court shall
order the temporary maintenance award based upon the needs of the  payee
or  the  standard  of living of the parties prior to commencement of the
divorce action, whichever is greater. Such order  may  be  retroactively
modified  upward  without  a  showing  of change in circumstances upon a
showing of newly discovered or obtained evidence.] TEMPORARY MAINTENANCE
SHALL TERMINATE NO LATER THAN THE ISSUANCE OF THE JUDGMENT OF DIVORCE OR
THE DEATH OF EITHER PARTY, WHICHEVER OCCURS FIRST.

S. 5678                             7

  h. [In any action or proceeding for modification of an order of  main-
tenance or alimony existing prior to the effective date of this subdivi-
sion, brought pursuant to this article, the temporary maintenance guide-
lines  set  forth  in  this subdivision shall not constitute a change of
circumstances  warranting  modification  of  such support order] (1) THE
COURT SHALL ORDER THE GUIDELINE AMOUNT OF TEMPORARY  MAINTENANCE  UP  TO
THE  INCOME  CAP  IN  ACCORDANCE  WITH  PARAGRAPH C OF THIS SUBDIVISION,
UNLESS THE COURT FINDS THAT THE GUIDELINE AMOUNT  OF  TEMPORARY  MAINTE-
NANCE  IS  UNJUST  OR  INAPPROPRIATE,  WHICH FINDING SHALL BE BASED UPON
CONSIDERATION OF ANY ONE OR MORE OF THE FOLLOWING FACTORS,  AND  ADJUSTS
THE  GUIDELINE  AMOUNT  OF  TEMPORARY MAINTENANCE ACCORDINGLY BASED UPON
SUCH CONSIDERATION:
  (A) THE AGE AND HEALTH OF THE PARTIES;
  (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING A
HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
  (C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
  (D) THE TERMINATION OF A CHILD SUPPORT AWARD DURING  THE  PENDENCY  OF
THE  TEMPORARY MAINTENANCE AWARD WHEN THE CALCULATION OF TEMPORARY MAIN-
TENANCE WAS BASED UPON CHILD SUPPORT BEING AWARDED AND WHICH RESULTED IN
A MAINTENANCE AWARD LOWER THAN IT WOULD HAVE BEEN HAD CHILD SUPPORT  NOT
BEEN AWARDED;
  (E)  THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
OR ENCUMBRANCES MADE IN CONTEMPLATION OF A  MATRIMONIAL  ACTION  WITHOUT
FAIR CONSIDERATION;
  (F)  THE  EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
PRE-DIVORCE SEPARATE HOUSEHOLD;
  (G) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR  CONTINUE
TO  INHIBIT  A  PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO  ACTS  OF  DOMESTIC
VIOLENCE  AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
SERVICES LAW;
  (H) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (I) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT  CHILDREN  OR
STEPCHILDREN,  ELDERLY  PARENTS  OR IN-LAWS PROVIDED DURING THE MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
  (J) THE TAX CONSEQUENCES TO EACH PARTY;
  (K) THE STANDARD OF LIVING  OF  THE  PARTIES  ESTABLISHED  DURING  THE
MARRIAGE;
  (L)  THE  REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT OF
HAVING FORGONE OR DELAYED  EDUCATION,  TRAINING,  EMPLOYMENT  OR  CAREER
OPPORTUNITIES DURING THE MARRIAGE; AND
  (M)  ANY  OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
  (2) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF TEMPORARY MAIN-
TENANCE IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS  THE  GUIDELINE
AMOUNT  OF  TEMPORARY  MAINTENANCE PURSUANT TO THIS PARAGRAPH, THE COURT
SHALL SET FORTH, IN A WRITTEN DECISION OR ON THE RECORD,  THE  GUIDELINE
AMOUNT  OF  TEMPORARY  MAINTENANCE,  THE  FACTORS IT CONSIDERED, AND THE
REASONS THAT THE COURT ADJUSTED THE GUIDELINE AMOUNT OF TEMPORARY  MAIN-
TENANCE.   SUCH DECISION, WHETHER IN WRITING OR ON THE RECORD, SHALL NOT
BE WAIVED BY EITHER PARTY OR COUNSEL.
  (3) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED,  THE  COURT  SHALL
NOT  ENTER  A  TEMPORARY  MAINTENANCE ORDER UNLESS THE COURT INFORMS THE
UNREPRESENTED PARTY OR PARTIES OF  THE  GUIDELINE  AMOUNT  OF  TEMPORARY
MAINTENANCE.

S. 5678                             8

  i. [In any decision made pursuant to] NOTHING CONTAINED IN this subdi-
vision  [the  court] shall[, where appropriate, consider the effect of a
barrier to remarriage, as defined in  subdivision  six  of  section  two
hundred  fifty-three  of this article, on the factors enumerated in this
subdivision]  BE  CONSTRUED TO ALTER THE RIGHTS OF THE PARTIES TO VOLUN-
TARILY ENTER INTO AGREEMENTS OR STIPULATIONS AS DEFINED  IN  SUBDIVISION
THREE OF THIS PART WHICH DEVIATE FROM THE PRESUMPTIVE AWARD OF TEMPORARY
MAINTENANCE.
  J.  WHEN A PAYOR HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE  COURT  SHALL  ORDER
THE TEMPORARY MAINTENANCE AWARD BASED UPON THE NEEDS OF THE PAYEE OR THE
STANDARD  OF  LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE DIVORCE
ACTION, WHICHEVER IS GREATER. SUCH ORDER MAY BE  RETROACTIVELY  MODIFIED
UPWARD  WITHOUT  A  SHOWING OF CHANGE IN CIRCUMSTANCES UPON A SHOWING OF
NEWLY DISCOVERED EVIDENCE.
  K. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF  THIS  SUBDIVI-
SION, BROUGHT PURSUANT TO THIS ARTICLE, THE TEMPORARY MAINTENANCE GUIDE-
LINES  SET  FORTH  IN  THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF
CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
  L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION WHERE THE PARTIES HAVE
ENTERED INTO AN AGREEMENT PROVIDING FOR MAINTENANCE PURSUANT TO SUBDIVI-
SION THREE OF THIS PART ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF THIS
SUBDIVISION, BROUGHT PURSUANT TO THIS ARTICLE, THE TEMPORARY MAINTENANCE
GUIDELINES SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE  A  CHANGE
OF CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
  M.  IN DETERMINING TEMPORARY MAINTENANCE, THE COURT SHALL CONSIDER AND
ALLOCATE, WHERE APPROPRIATE,  THE  RESPONSIBILITIES  OF  THE  RESPECTIVE
SPOUSES FOR THE FAMILY'S EXPENSES DURING THE PENDENCY OF THE PROCEEDING.
  N.  THE  TEMPORARY MAINTENANCE ORDER SHALL NOT PREJUDICE THE RIGHTS OF
EITHER PARTY REGARDING A POST-DIVORCE MAINTENANCE AWARD.
  S 4. Subdivision 6 of part B of section 236 of the domestic  relations
law,  as  amended by chapter 371 of the laws of 2010, is amended to read
as follows:
  6. Post-divorce maintenance awards. a. Except where the  parties  have
entered  into  an  agreement  pursuant to subdivision three of this part
providing for maintenance, in any matrimonial  action,  the  court  [may
order],  UPON  APPLICATION BY A PARTY, SHALL MAKE ITS AWARD FOR POST-DI-
VORCE maintenance [in such amount as justice requires, having regard for
the standard of living of the parties established during  the  marriage,
whether the party in whose favor maintenance is granted lacks sufficient
property  and  income  to  provide  for  his or her reasonable needs and
whether the other party has sufficient property or income to provide for
the reasonable needs of the other and the circumstances of the case  and
of  the respective parties. Such order shall be effective as of the date
of the application therefor, and any retroactive amount  of  maintenance
due  shall  be  paid  in  one  sum  or periodic sums, as the court shall
direct, taking into account any amount of  temporary  maintenance  which
has been paid. In determining the amount and duration of maintenance the
court shall consider:
  (1)  the income and property of the respective parties including mari-
tal property distributed pursuant to subdivision five of this part;
  (2) the length of the marriage;
  (3) the age and health of both parties;
  (4) the present and future earning capacity of both parties;
  (5) the need of one party to incur education or training expenses;

S. 5678                             9

  (6) the existence and duration of a pre-marital joint household  or  a
pre-divorce separate household;
  (7)  acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability  to  obtain  meaningful
employment.  Such  acts  include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the  social
services law;
  (8)  the  ability of the party seeking maintenance to become self-sup-
porting and, if applicable, the period of time  and  training  necessary
therefor;
  (9)  reduced  or  lost  lifetime earning capacity of the party seeking
maintenance as a result of having foregone or delayed education,  train-
ing, employment, or career opportunities during the marriage;
  (10)  the presence of children of the marriage in the respective homes
of the parties;
  (11) the care of the children or stepchildren, disabled adult children
or stepchildren, elderly  parents  or  in-laws  that  has  inhibited  or
continues to inhibit a party's earning capacity;
  (12) the inability of one party to obtain meaningful employment due to
age or absence from the workforce;
  (13)  the  need  to  pay  for  exceptional additional expenses for the
child/children, including but not limited to, schooling,  day  care  and
medical treatment;
  (14) the tax consequences to each party;
  (15) the equitable distribution of marital property;
  (16)  contributions and services of the party seeking maintenance as a
spouse, parent, wage earner and homemaker, and to the career  or  career
potential of the other party;
  (17) the wasteful dissipation of marital property by either spouse;
  (18) the transfer or encumbrance made in contemplation of a matrimoni-
al action without fair consideration;
  (19)  the  loss  of  health insurance benefits upon dissolution of the
marriage, and the availability and cost of  medical  insurance  for  the
parties; and
  (20)  any other factor which the court shall expressly find to be just
and proper] PURSUANT TO THE PROVISIONS OF THIS SUBDIVISION.
  b. [In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel] FOR PURPOSES OF  THIS
SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL BE USED:
  (1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
  (2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
  (3) "INCOME" SHALL MEAN:
  (A)  INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND  SECTION  FOUR  HUNDRED
THIRTEEN OF THE FAMILY COURT ACT, WITHOUT SUBTRACTING ALIMONY OR MAINTE-
NANCE  ACTUALLY  PAID  OR  TO BE PAID TO A SPOUSE THAT IS A PARTY TO THE
INSTANT ACTION PURSUANT TO SUBCLAUSE (C) OF CLAUSE (VII) OF SUBPARAGRAPH
FIVE OF PARAGRAPH (B) OF SUBDIVISION ONE-B OF SECTION TWO HUNDRED  FORTY
OF  THIS  ARTICLE AND SUBCLAUSE (C) OF CLAUSE (VII) OF SUBPARAGRAPH FIVE
OF PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION FOUR HUNDRED THIRTEEN  OF
THE FAMILY COURT ACT AND WITHOUT SUBTRACTING SPOUSAL SUPPORT PAID PURSU-
ANT TO SECTION FOUR HUNDRED TWELVE OF SUCH ACT; AND
  (B)  INCOME  FROM  INCOME-PRODUCING  PROPERTY  DISTRIBUTED  OR  TO  BE
DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.

S. 5678                            10

  (4)  "INCOME  CAP"  SHALL  MEAN  UP  TO  AND  INCLUDING  ONE   HUNDRED
SEVENTY-FIVE  THOUSAND  DOLLARS  OF THE PAYOR'S ANNUAL INCOME; PROVIDED,
HOWEVER, BEGINNING JANUARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND  EVERY
TWO YEARS THEREAFTER, THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF
THE  AVERAGE  ANNUAL  PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR
ALL URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT
OF LABOR BUREAU OF LABOR STATISTICS FOR THE PRIOR TWO  YEARS  MULTIPLIED
BY  THE  THEN  INCOME  CAP  AND THEN ROUNDED TO THE NEAREST ONE THOUSAND
DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND  PUBLISH
THE INCOME CAP.
  (5)  "GUIDELINE  AMOUNT  OF  POST-DIVORCE  MAINTENANCE" SHALL MEAN THE
DOLLAR AMOUNT DERIVED BY THE APPLICATION OF PARAGRAPH C  OR  D  OF  THIS
SUBDIVISION.
  (6)  "GUIDELINE  DURATION  OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
DURATIONAL PERIOD DETERMINED BY THE APPLICATION OF PARAGRAPH F  OF  THIS
SUBDIVISION.
  (7)  "POST-DIVORCE  MAINTENANCE  GUIDELINE  OBLIGATION" SHALL MEAN THE
GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE  DURATION
OF POST-DIVORCE MAINTENANCE.
  (8)  "LENGTH  OF  MARRIAGE"  SHALL  MEAN  THE  PERIOD FROM THE DATE OF
MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF THE ACTION.
  (9) "SELF-SUPPORT RESERVE" SHALL  MEAN  THE  SELF-SUPPORT  RESERVE  AS
DEFINED  IN  THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN  OF  THE
FAMILY COURT ACT.
  (10)  "AGREEMENT"  SHALL HAVE THE SAME MEANING AS PROVIDED IN SUBDIVI-
SION THREE OF THIS PART.
  c. [The court may award permanent maintenance, but an award of mainte-
nance shall terminate upon the death of either party or upon the recipi-
ent's valid or invalid marriage, or upon modification pursuant to  para-
graph  b  of  subdivision  nine  of  this  part  or  section two hundred
forty-eight of this chapter] WHERE THE PAYOR'S INCOME IS LOWER  THAN  OR
EQUAL  TO THE INCOME CAP, THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT
OF POST-DIVORCE MAINTENANCE AS FOLLOWS:
  (1) WHERE CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE  AND
WHERE THE PAYOR AS DEFINED IN THIS SUBDIVISION IS ALSO THE NON-CUSTODIAL
PARENT PURSUANT TO THE CHILD SUPPORT STANDARDS ACT:
  (A) THE COURT SHALL SUBTRACT TWENTY-FIVE PERCENT OF THE PAYEE'S INCOME
FROM TWENTY PERCENT OF THE PAYOR'S INCOME.
  (B)  THE  COURT  SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
  (C) THE COURT SHALL  SUBTRACT  THE  PAYEE'S  INCOME  FROM  THE  AMOUNT
DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
  (D)  THE COURT SHALL DETERMINE THE LOWER OF THE TWO AMOUNTS DERIVED BY
CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH.
  (E) THE GUIDELINE AMOUNT OF  POST-DIVORCE  MAINTENANCE  SHALL  BE  THE
AMOUNT DETERMINED BY CLAUSE (D) OF THIS SUBPARAGRAPH EXCEPT THAT, IF THE
AMOUNT  DETERMINED  BY  CLAUSE  (D) OF THIS SUBPARAGRAPH IS LESS THAN OR
EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE
ZERO DOLLARS.
  (F) NOTWITHSTANDING THE PROVISIONS  OF  THIS  SUBDIVISION,  WHERE  THE
GUIDELINE  AMOUNT  OF  POST-DIVORCE MAINTENANCE WOULD REDUCE THE PAYOR'S
INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE DIFFERENCE  BETWEEN  THE
PAYOR'S  INCOME  AND  THE SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS

S. 5678                            11

BELOW THE SELF-SUPPORT RESERVE, THERE SHALL BE A REBUTTABLE  PRESUMPTION
THAT NO POST-DIVORCE MAINTENANCE IS AWARDED.
  (G) MAINTENANCE SHALL BE CALCULATED PRIOR TO CHILD SUPPORT BECAUSE THE
AMOUNT  OF  MAINTENANCE  SHALL BE SUBTRACTED FROM THE PAYOR'S INCOME AND
ADDED TO THE PAYEE'S INCOME AS PART OF  THE  CALCULATION  OF  THE  CHILD
SUPPORT OBLIGATION.
  (2) WHERE CHILD SUPPORT WILL NOT BE PAID FOR CHILDREN OF THE MARRIAGE,
OR WHERE CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE
PAYOR AS DEFINED IN THIS SUBDIVISION IS THE CUSTODIAL PARENT PURSUANT TO
THE CHILD SUPPORT STANDARDS ACT:
  (A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
  (B)  THE  COURT  SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
  (C) THE COURT SHALL  SUBTRACT  THE  PAYEE'S  INCOME  FROM  THE  AMOUNT
DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
  (D)  THE COURT SHALL DETERMINE THE LOWER OF THE TWO AMOUNTS DERIVED BY
CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH.
  (E) THE GUIDELINE AMOUNT OF  POST-DIVORCE  MAINTENANCE  SHALL  BE  THE
AMOUNT DETERMINED BY CLAUSE (D) OF THIS SUBPARAGRAPH EXCEPT THAT, IF THE
AMOUNT  DETERMINED  BY  CLAUSE  (D) OF THIS SUBPARAGRAPH IS LESS THAN OR
EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE
ZERO DOLLARS.
  (F) IF CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE
PAYOR AS DEFINED IN THIS SUBDIVISION IS THE CUSTODIAL PARENT PURSUANT TO
THE CHILD SUPPORT  STANDARDS  ACT,  POST-DIVORCE  MAINTENANCE  SHALL  BE
CALCULATED  PRIOR  TO  CHILD  SUPPORT BECAUSE THE AMOUNT OF POST-DIVORCE
MAINTENANCE SHALL BE SUBTRACTED FROM THE PAYOR'S INCOME PURSUANT TO THIS
SUBDIVISION AND ADDED TO THE PAYEE'S INCOME PURSUANT TO THIS SUBDIVISION
AS PART OF THE CALCULATION OF THE CHILD SUPPORT OBLIGATION.
  (G) NOTWITHSTANDING THE PROVISIONS  OF  THIS  SUBDIVISION,  WHERE  THE
GUIDELINE  AMOUNT  OF  POST-DIVORCE MAINTENANCE WOULD REDUCE THE PAYOR'S
INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE
AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE DIFFERENCE  BETWEEN  THE
PAYOR'S  INCOME  AND  THE SELF-SUPPORT RESERVE. IF THE PAYOR'S INCOME IS
BELOW THE SELF-SUPPORT RESERVE, THERE SHALL BE A REBUTTABLE  PRESUMPTION
THAT NO POST-DIVORCE MAINTENANCE IS AWARDED.
  d. [In any decision made pursuant to this subdivision the court shall,
where  appropriate,  consider  the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred  fifty-three  of  this
article,  on  the factors enumerated in paragraph a of this subdivision]
WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL  DETER-
MINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AS FOLLOWS:
  (1)  THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN PARAGRAPH C
OF THIS SUBDIVISION FOR THE INCOME OF PAYOR  UP  TO  AND  INCLUDING  THE
INCOME CAP; AND
  (2) FOR INCOME EXCEEDING THE CAP, THE AMOUNT OF ADDITIONAL MAINTENANCE
AWARDED, IF ANY, SHALL BE WITHIN THE DISCRETION OF THE COURT WHICH SHALL
TAKE  INTO  CONSIDERATION  ANY  ONE  OR MORE OF THE FACTORS SET FORTH IN
SUBPARAGRAPH ONE OF PARAGRAPH E OF THIS SUBDIVISION; AND
  (3) THE COURT SHALL SET  FORTH  THE  FACTORS  IT  CONSIDERED  AND  THE
REASONS  FOR  ITS  DECISION  IN WRITING OR ON THE RECORD. SUCH DECISION,
WHETHER IN WRITING OR ON THE RECORD, MAY NOT BE WAIVED BY  EITHER  PARTY
OR COUNSEL.
  E.  (1)  THE  COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION UP TO THE INCOME CAP IN ACCORDANCE WITH PARAGRAPH C  OF  THIS

S. 5678                            12

SUBDIVISION,  UNLESS  THE  COURT FINDS THAT THE POST-DIVORCE MAINTENANCE
GUIDELINE OBLIGATION IS UNJUST OR INAPPROPRIATE, WHICH FINDING SHALL  BE
BASED  UPON  CONSIDERATION  OF ANY ONE OR MORE OF THE FOLLOWING FACTORS,
AND ADJUSTS THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION ACCORDING-
LY BASED UPON SUCH CONSIDERATION:
  (A) THE AGE AND HEALTH OF THE PARTIES;
  (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING A
HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
  (C) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
  (D) THE TERMINATION OF A CHILD SUPPORT AWARD BEFORE THE TERMINATION OF
THE MAINTENANCE AWARD WHEN THE CALCULATION OF MAINTENANCE WAS BASED UPON
CHILD  SUPPORT BEING AWARDED WHICH RESULTED IN A MAINTENANCE AWARD LOWER
THAN IT WOULD HAVE BEEN HAD CHILD SUPPORT NOT BEEN AWARDED;
  (E) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING  TRANSFERS
OR  ENCUMBRANCES  MADE  IN CONTEMPLATION OF A MATRIMONIAL ACTION WITHOUT
FAIR CONSIDERATION;
  (F) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD  OR  A
PRE-DIVORCE SEPARATE HOUSEHOLD;
  (G)  ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY  TO  OBTAIN  MEANINGFUL
EMPLOYMENT.  SUCH  ACTS  INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE  SOCIAL
SERVICES LAW;
  (H) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (I)  THE  CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED  DURING  THE  MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
  (J) THE TAX CONSEQUENCES TO EACH PARTY;
  (K)  THE  STANDARD  OF  LIVING  OF  THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
  (L) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A  RESULT  OF
HAVING  FORGONE  OR  DELAYED  EDUCATION,  TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE;
  (M) THE EQUITABLE DISTRIBUTION OF MARITAL PROPERTY AND THE  INCOME  OR
IMPUTED INCOME ON THE ASSETS SO DISTRIBUTED;
  (N)  THE  CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE, PARENT,
WAGE EARNER AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL  OF  THE
OTHER PARTY; AND
  (O)  ANY  OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
AND PROPER.
  (2) WHERE THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE  GUIDELINE
OBLIGATION IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE POST-DI-
VORCE  MAINTENANCE  GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE
COURT SHALL SET FORTH, IN A WRITTEN DECISION OR ON THE RECORD, THE UNAD-
JUSTED POST-DIVORCE MAINTENANCE GUIDELINE  OBLIGATION,  THE  FACTORS  IT
CONSIDERED,  AND  THE  REASONS  THAT THE COURT ADJUSTED THE POST-DIVORCE
MAINTENANCE OBLIGATION. SUCH DECISION SHALL  NOT  BE  WAIVED  BY  EITHER
PARTY OR COUNSEL.
  F.  THE  DURATION  OF  POST-DIVORCE  MAINTENANCE  MAY BE DETERMINED AS
FOLLOWS:
  (1) THE COURT MAY DETERMINE THE DURATION OF  POST-DIVORCE  MAINTENANCE
IN ACCORDANCE WITH THE FOLLOWING ADVISORY SCHEDULE:
LENGTH OF THE MARRIAGE             PERCENT OF THE LENGTH OF THE
                                   MARRIAGE FOR WHICH
                                   MAINTENANCE WILL BE PAYABLE
0 UP TO AND INCLUDING 15 YEARS     15% - 30%

S. 5678                            13

MORE THAN 15 UP TO AND INCLUDING   30% - 40%
20 YEARS
MORE THAN 20 YEARS                 35% - 50%
  (2)  IN  DETERMINING THE DURATION OF POST-DIVORCE MAINTENANCE, WHETHER
OR NOT THE COURT UTILIZES THE ADVISORY SCHEDULE, IT SHALL  CONSIDER  THE
FACTORS  LISTED  IN  SUBPARAGRAPH ONE OF PARAGRAPH E OF THIS SUBDIVISION
AND SHALL SET FORTH, IN A WRITTEN DECISION OR ON THE RECORD, THE FACTORS
IT CONSIDERED. SUCH DECISION SHALL NOT BE  WAIVED  BY  EITHER  PARTY  OR
COUNSEL.  NOTHING HEREIN SHALL PREVENT THE COURT FROM AWARDING NON-DURA-
TIONAL MAINTENANCE IN AN APPROPRIATE CASE.
  (3) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH ONE OF  THIS  PARA-
GRAPH, POST-DIVORCE MAINTENANCE SHALL TERMINATE UPON THE DEATH OF EITHER
PARTY  OR  UPON THE PAYEE'S VALID OR INVALID MARRIAGE, OR UPON MODIFICA-
TION PURSUANT TO PARAGRAPH B OF SUBDIVISION NINE OF THIS PART OR SECTION
TWO HUNDRED FORTY-EIGHT OF THIS ARTICLE.
  (4) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH ONE OF  THIS  PARA-
GRAPH,  WHEN DETERMINING DURATION OF POST-DIVORCE MAINTENANCE, THE COURT
SHALL TAKE INTO CONSIDERATION ANTICIPATED RETIREMENT  ASSETS,  BENEFITS,
AND  RETIREMENT  ELIGIBILITY AGE OF BOTH PARTIES IF ASCERTAINABLE AT THE
TIME OF DECISION. IF NOT ASCERTAINABLE AT  THE  TIME  OF  DECISION,  THE
ACTUAL  FULL OR PARTIAL RETIREMENT OF THE PAYOR WITH SUBSTANTIAL DIMINU-
TION OF INCOME SHALL BE A BASIS FOR A MODIFICATION OF THE AWARD.
  G. WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT
ENTER A MAINTENANCE ORDER OR  JUDGMENT  UNLESS  THE  COURT  INFORMS  THE
UNREPRESENTED PARTY OR PARTIES OF THE POST-DIVORCE MAINTENANCE GUIDELINE
OBLIGATION.
  H.  NOTHING  CONTAINED IN THIS SUBDIVISION SHALL BE CONSTRUED TO ALTER
THE RIGHTS OF THE PARTIES TO VOLUNTARILY  ENTER  INTO  VALIDLY  EXECUTED
AGREEMENTS  OR  STIPULATIONS WHICH DEVIATE FROM THE POST-DIVORCE MAINTE-
NANCE GUIDELINE OBLIGATION.
  I. WHEN A PAYOR HAS DEFAULTED AND/OR THE COURT MAKES A FINDING AT  THE
TIME OF TRIAL THAT IT WAS PRESENTED WITH INSUFFICIENT EVIDENCE TO DETER-
MINE  INCOME,  THE  COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE BASED
UPON THE NEEDS OF THE PAYEE OR THE STANDARD OF  LIVING  OF  THE  PARTIES
PRIOR TO COMMENCEMENT OF THE DIVORCE ACTION, WHICHEVER IS GREATER.  SUCH
ORDER  MAY  BE RETROACTIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE
IN  CIRCUMSTANCES  UPON  A  SHOWING  OF  SUBSTANTIAL  NEWLY   DISCOVERED
EVIDENCE.
  J. POST-DIVORCE MAINTENANCE MAY BE MODIFIED PURSUANT TO PARAGRAPH B OF
SUBDIVISION NINE OF THIS PART.
  K. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE  OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF
THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SUBDIVISION, BROUGHT
PURSUANT TO THIS ARTICLE, THE GUIDELINES  FOR  POST-DIVORCE  MAINTENANCE
SET  FORTH  IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF CIRCUM-
STANCES WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
  L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION WHERE THE PARTIES HAVE
ENTERED INTO AN AGREEMENT PROVIDING FOR MAINTENANCE PURSUANT TO SUBDIVI-
SION THREE OF THIS PART ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF  THE
CHAPTER  OF THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SUBDIVI-
SION, BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR  POST-DIVORCE
MAINTENANCE  SET FORTH IN THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE
OF CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH AGREEMENT.
  M. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER  OF
THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS SUBDIVISION, BROUGHT

S. 5678                            14

PURSUANT  TO  THIS  ARTICLE, THE GUIDELINES FOR POST-DIVORCE MAINTENANCE
SET FORTH IN PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL NOT APPLY.
  N. IN ANY ACTION OR PROCEEDING FOR MODIFICATION WHERE THE PARTIES HAVE
ENTERED INTO AN AGREEMENT PROVIDING FOR MAINTENANCE PURSUANT TO SUBDIVI-
SION  THREE OF THIS PART ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF THE
CHAPTER OF THE LAWS OF TWO THOUSAND FIFTEEN WHICH AMENDED THIS  SUBDIVI-
SION,  BROUGHT PURSUANT TO THIS ARTICLE, THE GUIDELINES FOR POST-DIVORCE
MAINTENANCE SET FORTH IN PARAGRAPHS C, D AND E OF THIS SUBDIVISION SHALL
NOT APPLY.
  O. IN ANY DECISION MADE PURSUANT TO THIS SUBDIVISION THE COURT  SHALL,
WHERE  APPROPRIATE,  CONSIDER  THE EFFECT OF A BARRIER TO REMARRIAGE, AS
DEFINED IN SUBDIVISION SIX OF SECTION TWO HUNDRED  FIFTY-THREE  OF  THIS
ARTICLE, ON THE FACTORS ENUMERATED IN PARAGRAPH E OF THIS SUBDIVISION.
  S  5.  Subparagraph  1  of  paragraph  b of subdivision 9 of part B of
section 236 of the domestic relations law, as amended by chapter 182  of
the laws of 2010, is amended to read as follows:
  (1)  Upon  application  by either party, the court may annul or modify
any prior order or judgment MADE AFTER TRIAL as to maintenance,  upon  a
showing  of the [recipient's] PAYEE'S inability to be self-supporting or
UPON A SHOWING OF a substantial change in circumstance  [or  termination
of  child  support awarded pursuant to section two hundred forty of this
article], including financial hardship OR UPON ACTUAL  FULL  OR  PARTIAL
RETIREMENT  OF  THE  PAYOR  IF  THE  RETIREMENT RESULTS IN A SUBSTANTIAL
CHANGE IN FINANCIAL CIRCUMSTANCES. Where, after the  effective  date  of
this part, [a separation] AN agreement remains in force, no modification
of [a prior] AN order or judgment incorporating the terms of said agree-
ment  shall be made as to maintenance without a showing of extreme hard-
ship on either party, in which event the judgment or order  as  modified
shall  supersede  the terms of the prior agreement and judgment for such
period of time and under such circumstances as the court determines. The
court shall not reduce or annul any arrears of  maintenance  which  have
been  reduced  to  final judgment pursuant to section two hundred forty-
four of this article. No other arrears of maintenance which have accrued
prior to the making of such application shall be subject to modification
or annulment unless the defaulting party shows good cause for failure to
make application for relief from the judgment or  order  directing  such
payment  prior  to the accrual of such arrears and the facts and circum-
stances constituting good cause are set forth in a written memorandum of
decision. Such modification may increase maintenance nunc pro tunc as of
the date of application based on newly discovered evidence. Any retroac-
tive amount of maintenance due shall, except as provided for herein,  be
paid  in  one  sum  or  periodic sums, as the court directs, taking into
account any temporary or partial payments  which  have  been  made.  The
provisions of this subdivision shall not apply to a separation agreement
made prior to the effective date of this part.
  S  6. Section 248 of the domestic relations law, as amended by chapter
604 of the laws of 1975, is amended to read as follows:
  S 248. Modification of judgment or order  in  action  for  divorce  or
annulment.  Where an action for divorce or for annulment or for a decla-
ration of the nullity of a void marriage is brought  by  a  [husband  or
wife]  SPOUSE,  and  a  final  judgment  of  divorce or a final judgment
annulling the marriage or declaring its nullity has been  rendered,  the
court,  by  order upon the application of the [husband] PAYOR on notice,
and on proof of the marriage of the [wife] PAYEE after such final  judg-
ment,  must  modify such final judgment and any orders made with respect
thereto by annulling the provisions of such final judgment or orders, or

S. 5678                            15

of both, directing payments of money  for  the  support  of  the  [wife]
PAYEE.    The  court in its discretion upon application of the [husband]
PAYOR on notice, upon proof that the [wife] PAYEE is  habitually  living
with  another  [man]  PERSON  and holding HIMSELF OR herself out as [his
wife] THE SPOUSE OF SUCH OTHER PERSON,  although  not  married  to  such
[man]  OTHER  PERSON, may modify such final judgment and any orders made
with respect thereto by annulling the provisions of such final  judgment
or orders or of both, directing payment of money for the support of such
[wife] PAYEE.
  S 7. Section 412 of the family court act, as amended by chapter 281 of
the laws of 1980, is amended to read as follows:
  S 412. Married person's duty to support spouse. 1. A married person is
chargeable  with  the support of his or her spouse and, [if possessed of
sufficient means or able to earn such means, may be required to pay  for
his  or  her  support  a  fair  and reasonable sum, as] EXCEPT WHERE THE
PARTIES HAVE ENTERED INTO AN AGREEMENT PURSUANT TO SECTION FOUR  HUNDRED
TWENTY-FIVE OF THIS ARTICLE PROVIDING FOR SUPPORT, the court [may deter-
mine, having due regard to the circumstances of the respective parties],
UPON  APPLICATION  BY  A PARTY, SHALL MAKE ITS AWARD FOR SPOUSAL SUPPORT
PURSUANT TO THE PROVISIONS OF THIS PART.
  2. FOR PURPOSES OF THIS SECTION, THE FOLLOWING  DEFINITIONS  SHALL  BE
USED:
  (A) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
  (B) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
  (C)  "INCOME" SHALL MEAN INCOME AS DEFINED IN THE CHILD SUPPORT STAND-
ARDS ACT AND CODIFIED IN SECTION  TWO  HUNDRED  FORTY  OF  THE  DOMESTIC
RELATIONS  LAW AND SECTION FOUR HUNDRED THIRTEEN OF THIS ARTICLE WITHOUT
SUBTRACTING SPOUSAL SUPPORT ACTUALLY PAID OR TO BE PAID TO A SPOUSE THAT
IS A PARTY TO THE INSTANT ACTION PURSUANT TO  SUBCLAUSE  (C)  OF  CLAUSE
(VII)  OF  SUBPARAGRAPH  FIVE  OF  PARAGRAPH (B) OF SUBDIVISION ONE-B OF
SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS  LAW  AND  SUBCLAUSE
(C) OF CLAUSE (VII) OF SUBPARAGRAPH FIVE OF PARAGRAPH (B) OF SUBDIVISION
ONE OF SECTION FOUR HUNDRED THIRTEEN OF THIS ARTICLE.
  (D)   "INCOME  CAP"  SHALL  MEAN  UP  TO  AND  INCLUDING  ONE  HUNDRED
SEVENTY-FIVE THOUSAND DOLLARS OF THE PAYOR'S  ANNUAL  INCOME;  PROVIDED,
HOWEVER,  BEGINNING JANUARY THIRTY-FIRST, TWO THOUSAND SIXTEEN AND EVERY
TWO YEARS THEREAFTER, THE INCOME CAP AMOUNT SHALL INCREASE BY THE SUM OF
THE AVERAGE ANNUAL PERCENTAGE CHANGES IN THE CONSUMER  PRICE  INDEX  FOR
ALL URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT
OF  LABOR  BUREAU OF LABOR STATISTICS FOR THE PRIOR TWO YEARS MULTIPLIED
BY THE THEN INCOME CAP AND THEN ROUNDED  TO  THE  NEAREST  ONE  THOUSAND
DOLLARS.  THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND PUBLISH
THE INCOME CAP.
  (E) "GUIDELINE AMOUNT OF SPOUSAL SUPPORT" SHALL MEAN THE  SUM  DERIVED
BY THE APPLICATION OF SUBDIVISION THREE OR FOUR OF THIS SECTION.
  (F)  "SELF-SUPPORT  RESERVE"  SHALL  MEAN  THE SELF-SUPPORT RESERVE AS
DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN  SECTION  TWO
HUNDRED  FORTY  OF  THE  DOMESTIC RELATIONS LAW AND SECTION FOUR HUNDRED
THIRTEEN OF THIS ARTICLE.
  (G) "AGREEMENT" SHALL HAVE THE SAME MEANING AS PROVIDED IN SUBDIVISION
THREE OF PART B OF  SECTION  TWO  HUNDRED  THIRTY-SIX  OF  THE  DOMESTIC
RELATIONS LAW.
  3.  WHERE THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT  OF  SPOUSAL  SUPPORT  AS
FOLLOWS:

S. 5678                            16

  (A)  WHERE CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE AND
WHERE THE PAYOR AS DEFINED IN THIS SECTION  IS  ALSO  THE  NON-CUSTODIAL
PARENT PURSUANT TO THE CHILD SUPPORT STANDARDS ACT:
  (1) THE COURT SHALL SUBTRACT TWENTY-FIVE PERCENT OF THE PAYEE'S INCOME
FROM TWENTY PERCENT OF THE PAYOR'S INCOME.
  (2)  THE  COURT  SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
  (3) THE COURT SHALL  SUBTRACT  THE  PAYEE'S  INCOME  FROM  THE  AMOUNT
DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
  (4)  THE COURT SHALL DETERMINE THE LOWER OF THE TWO AMOUNTS DERIVED BY
SUBPARAGRAPHS ONE AND THREE OF THIS PARAGRAPH.
  (5) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
MINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF THE  AMOUNT
DETERMINED  BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR EQUAL
TO ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
  (6) SPOUSAL SUPPORT SHALL BE CALCULATED PRIOR TO CHILD SUPPORT BECAUSE
THE AMOUNT OF SPOUSAL SUPPORT  SHALL  BE  SUBTRACTED  FROM  THE  PAYOR'S
INCOME AND ADDED TO THE PAYEE'S INCOME AS PART OF THE CALCULATION OF THE
CHILD SUPPORT OBLIGATION.
  (B) WHERE CHILD SUPPORT WILL NOT BE PAID FOR CHILDREN OF THE MARRIAGE,
OR WHERE CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE
PAYOR AS DEFINED IN THIS SECTION IS THE CUSTODIAL PARENT PURSUANT TO THE
CHILD SUPPORT STANDARDS ACT:
  (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
THIRTY PERCENT OF THE PAYOR'S INCOME.
  (2)  THE  COURT  SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
THE PAYEE'S INCOME BY FORTY PERCENT.
  (3) THE COURT SHALL  SUBTRACT  THE  PAYEE'S  INCOME  FROM  THE  AMOUNT
DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
  (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
GRAPHS ONE AND THREE OF THIS PARAGRAPH.
  (5) THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE THE AMOUNT DETER-
MINED  BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF THE AMOUNT
DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR  EQUAL
TO ZERO, THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT SHALL BE ZERO DOLLARS.
  (6) IF CHILD SUPPORT WILL BE PAID FOR CHILDREN OF THE MARRIAGE BUT THE
PAYOR AS DEFINED IN THIS SECTION IS THE CUSTODIAL PARENT PURSUANT TO THE
CHILD  SUPPORT  STANDARDS ACT, SPOUSAL SUPPORT SHALL BE CALCULATED PRIOR
TO CHILD  SUPPORT  BECAUSE  THE  AMOUNT  OF  SPOUSAL  SUPPORT  SHALL  BE
SUBTRACTED  FROM  THE  PAYOR'S INCOME AND ADDED TO THE PAYEE'S INCOME AS
PART OF THE CALCULATION OF THE CHILD SUPPORT OBLIGATION.
  4. WHERE THE PAYOR'S INCOME EXCEEDS THE INCOME CAP,  THE  COURT  SHALL
DETERMINE THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT AS FOLLOWS:
  (A)  THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBDIVISION
THREE OF THIS SECTION FOR THE INCOME OF THE PAYOR UP  TO  AND  INCLUDING
THE INCOME CAP; AND
  (B)  FOR  INCOME  EXCEEDING  THE CAP, THE AMOUNT OF ADDITIONAL SPOUSAL
SUPPORT AWARDED, IF ANY, SHALL BE WITHIN THE  DISCRETION  OF  THE  COURT
WHICH  SHALL  TAKE INTO CONSIDERATION ANY ONE OR MORE OF THE FACTORS SET
FORTH IN PARAGRAPH (A) OF SUBDIVISION SIX OF THIS SECTION; AND
  (C) THE COURT SHALL SET  FORTH  THE  FACTORS  IT  CONSIDERED  AND  THE
REASONS  FOR  ITS  DECISION  IN WRITING OR ON THE RECORD. SUCH DECISION,
WHETHER IN WRITING OR ON THE RECORD, MAY NOT BE WAIVED BY  EITHER  PARTY
OR COUNSEL.
  5. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WHERE THE GUIDELINE
AMOUNT  OF  SPOUSAL  SUPPORT  WOULD  REDUCE THE PAYOR'S INCOME BELOW THE

S. 5678                            17

SELF-SUPPORT RESERVE FOR A SINGLE PERSON, THE GUIDELINE AMOUNT OF SPOUS-
AL SUPPORT SHALL BE THE DIFFERENCE BETWEEN THE PAYOR'S  INCOME  AND  THE
SELF-SUPPORT  RESERVE.  IF  THE PAYOR'S INCOME IS BELOW THE SELF-SUPPORT
RESERVE, THERE SHALL BE A REBUTTABLE PRESUMPTION THAT NO SPOUSAL SUPPORT
IS AWARDED.
  6.  (A)  THE COURT SHALL ORDER THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
UP TO THE CAP IN ACCORDANCE WITH  SUBDIVISION  THREE  OF  THIS  SECTION,
UNLESS  THE  COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT IS
UNJUST OR INAPPROPRIATE, WHICH FINDING SHALL BE BASED UPON CONSIDERATION
OF ANY ONE OR MORE OF THE FOLLOWING FACTORS, AND ADJUSTS  THE  GUIDELINE
AMOUNT  OF  SPOUSAL  SUPPORT ACCORDINGLY BASED UPON CONSIDERATION OF THE
FOLLOWING FACTORS:
  (1) THE AGE AND HEALTH OF THE PARTIES;
  (2) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING A
HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
  (3) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
  (4) THE TERMINATION OF A CHILD SUPPORT AWARD DURING  THE  PENDENCY  OF
THE  SPOUSAL  SUPPORT  AWARD WHEN THE CALCULATION OF SPOUSAL SUPPORT WAS
BASED UPON CHILD SUPPORT BEING  AWARDED  WHICH  RESULTED  IN  A  SPOUSAL
SUPPORT  AWARD  LOWER THAN IT WOULD HAVE BEEN HAD CHILD SUPPORT NOT BEEN
AWARDED;
  (5) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING  TRANSFERS
OR  ENCUMBRANCES  MADE  IN CONTEMPLATION OF A SUPPORT PROCEEDING WITHOUT
FAIR CONSIDERATION;
  (6) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD  OR  A
PRE-SUPPORT PROCEEDINGS SEPARATE HOUSEHOLD;
  (7)  ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY  TO  OBTAIN  MEANINGFUL
EMPLOYMENT.  SUCH  ACTS  INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE  SOCIAL
SERVICES LAW;
  (8) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
  (9)  THE  CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED  DURING  THE  MARRIAGE
THAT INHIBITS A PARTY'S EARNING CAPACITY;
  (10) THE TAX CONSEQUENCES TO EACH PARTY;
  (11)  THE  STANDARD  OF  LIVING  OF THE PARTIES ESTABLISHED DURING THE
MARRIAGE;
  (12) THE REDUCED OR LOST EARNING CAPACITY OF THE PAYEE AS A RESULT  OF
HAVING  FORGONE  OR  DELAYED  EDUCATION,  TRAINING, EMPLOYMENT OR CAREER
OPPORTUNITIES DURING THE MARRIAGE;
  (13) THE CONTRIBUTIONS AND SERVICES OF THE PAYEE AS A SPOUSE,  PARENT,
WAGE  EARNER  AND HOMEMAKER AND TO THE CAREER OR CAREER POTENTIAL OF THE
OTHER PARTY;
  (14) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE  JUST
AND PROPER.
  (B) WHERE THE COURT FINDS THAT THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT
IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE GUIDELINE AMOUNT OF
SPOUSAL SUPPORT PURSUANT TO THIS SUBDIVISION, THE COURT SHALL SET FORTH,
IN  A WRITTEN DECISION OR ON THE RECORD, THE GUIDELINE AMOUNT OF SPOUSAL
SUPPORT, THE FACTORS IT CONSIDERED,  AND  THE  REASONS  THAT  THE  COURT
ADJUSTED THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT. SUCH DECISION, WHETHER
IN  WRITING  OR  ON  THE  RECORD, SHALL NOT BE WAIVED BY EITHER PARTY OR
COUNSEL.

S. 5678                            18

  (C) WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED,  THE  COURT  SHALL
NOT  ENTER A SPOUSAL SUPPORT ORDER UNLESS THE COURT INFORMS THE UNREPRE-
SENTED PARTY OR PARTIES OF THE GUIDELINE AMOUNT OF SPOUSAL SUPPORT.
  7.  WHEN A PARTY HAS DEFAULTED AND/OR THE COURT MAKES A FINDING AT THE
TIME OF TRIAL THAT IT WAS PRESENTED WITH INSUFFICIENT EVIDENCE TO DETER-
MINE INCOME, THE COURT SHALL ORDER THE SPOUSAL SUPPORT AWARD BASED  UPON
THE NEEDS OF THE PAYEE OR THE STANDARD OF LIVING OF THE PARTIES PRIOR TO
COMMENCEMENT  OF  THE  SPOUSAL SUPPORT PROCEEDING, WHICHEVER IS GREATER.
SUCH ORDER MAY BE RETROACTIVELY MODIFIED UPWARD  WITHOUT  A  SHOWING  OF
CHANGE  IN  CIRCUMSTANCES UPON A SHOWING OF SUBSTANTIAL NEWLY DISCOVERED
EVIDENCE.
  8. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF SPOUSAL
SUPPORT EXISTING PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE  LAWS
OF  TWO THOUSAND FIFTEEN WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO
THIS ARTICLE, THE SPOUSAL SUPPORT GUIDELINES SET FORTH IN  THIS  SECTION
SHALL  NOT  CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANTING MODIFICATION
OF SUCH SPOUSAL SUPPORT ORDER.
  9. IN ANY ACTION OR PROCEEDING FOR MODIFICATION WHERE SPOUSAL  SUPPORT
OR  MAINTENANCE  WAS  ESTABLISHED  IN  A WRITTEN AGREEMENT PROVIDING FOR
SPOUSAL SUPPORT MADE PURSUANT TO SECTION  FOUR  HUNDRED  TWENTY-FIVE  OF
THIS  ARTICLE OR MADE PURSUANT TO SUBDIVISION THREE OF PART B OF SECTION
TWO HUNDRED THIRTY-SIX OF THE DOMESTIC RELATIONS LAW ENTERED INTO  PRIOR
TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND FIFTEEN
WHICH AMENDED THIS SECTION, BROUGHT PURSUANT TO THIS ARTICLE, THE SPOUS-
AL  SUPPORT  GUIDELINES SET FORTH IN THIS SECTION SHALL NOT CONSTITUTE A
CHANGE OF CIRCUMSTANCES WARRANTING MODIFICATION OF SUCH SPOUSAL  SUPPORT
ORDER.
  10. THE COURT MAY MODIFY AN ORDER OF SPOUSAL SUPPORT UPON A SHOWING OF
A SUBSTANTIAL CHANGE IN CIRCUMSTANCES. UNLESS SO MODIFIED, ANY ORDER FOR
SPOUSAL SUPPORT ISSUED PURSUANT TO THIS SECTION SHALL CONTINUE UNTIL THE
EARLIEST TO OCCUR OF THE FOLLOWING:
  (A) A WRITTEN STIPULATION OR AGREEMENT BETWEEN THE PARTIES;
  (B)  AN ORAL STIPULATION OR AGREEMENT BETWEEN THE PARTIES ENTERED INTO
ON THE RECORD IN OPEN COURT;
  (C) ISSUANCE OF A JUDGMENT OF DIVORCE OR OTHER ORDER IN A  MATRIMONIAL
PROCEEDING;
  (D) THE DEATH OF EITHER PARTY.
  S 8. This act shall take effect on the one hundred twentieth day after
it  shall  have  become a law and shall apply to matrimonial actions and
family court actions for spousal support  commenced  on  or  after  such
effective  date;  provided  however that section three of this act shall
take effect on the thirtieth day after it shall have become  a  law  and
shall  apply to matrimonial actions commenced on or after such effective
date.  Nothing in this act shall be deemed to affect the validity of any
agreement made pursuant to subdivision 3 of part B of section 236 of the
domestic relations law or section 425 of the family court act  prior  to
the effective date of this act.