New Divorce law in New York includes Temporary Spousal Support Guidelines

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.

In March of 2010 Attorney Justin Kelsey of Kelsey & Trask, P.C. was contacted by the NYS Law Revision Commission because of his involvement in co-authoring the Divorce Spousal Support Calculator. The NYS Law Revision Commission was asked by a member of the New York State Assembly to investigate how other states were addressing the issue of alimony formulas. Attorney Kelsey discussed the issues at length during a telephone conversation with the executive director of the Commission and expressed his opinion (as described in a past blog post) that a formula at least has the advantage of treating everyone the same and offering consistency to the treatment of alimony by different Judges. It is possible that Attorney Kelsey played some small part, therefore, in the newest changes to New York's alimony provisions.

In addition to adding No-Fault Divorce, a recent New York law that went into effect this month also contains a formula for calculating "temporary maintenance." This temporary spousal support defined in New York Domestic Relations Law Section 236 Part B(5-a) only lasts until either party dies or a final award of maintenance is awarded under Part B(6). Although, there is no formula for post-divorce maintenance, the temporary maintenance formula would likely be instructive for long-term maintenance in many cases.

Similar to the Massachusetts statute, post-divorce maintenance is based on numerous factors including length of the marriage, age and health of both parties, income-earning capacity, needs of the children etc. The calculation for temporary support in the new statute, however, is based on a formula, with the ability to deviate if application of some of these same factors suggests the calculated award is unfair. Essentially this sets up the presumption of a formula with the ability for parties to still argue against the use of the formula.

The formula is explained in Appendix B of the Temporary Maintenance Guidelines Worksheet available on the NY State Court's website. Essentially it calculates whether the payee's net income is more than 2/3 of the payor's net income, in which case there is no alimony award. If the payee's net income is less than 2/3 of the payor's net income then the award will be the lessor of

a. 30% of payor's net income minus 20% of payee's net income; or
b. 40% of the total net income of both parties minus the net income of the payee.

In addition there is a low income adjustment in some cases and the temporary maintenance formula only applies for payors whose net annual income is below $500,000.

For more information and a critique of this new law read this news story on YNN, or this blog post on Legal Match Law Blog.

We will not be updating the Divorce Spousal Support Calculator to include this formula at this time because the New York formula deals only with temporary maintenance orders, while the other formulas currently included in the calculator are intended for post-divorce support.

Reaction to Editorial claiming "New alimony law is bad for women"

Wendy Murphy, an adjunct professor at New England School of Law and a former prosecutor, wrote an editorial at CNN.com entitled New alimony law is bad for women.  The article so poorly misstates what the law was in Massachusetts before The Alimony Reform Act of 2011 (which took effect on March 1, 2012), that I felt compelled to respond:

New Law does not Eliminate Lifetime Alimony in all Cases.

Ms. Murphy argues that the the new alimony law is unfair to women who are overwhelmingly the majority of alimony recipients because it limits the duration of alimony orders based on a formula.  She claims that the formula is arbitrary and that alimony "won't last a lifetime."  She admits that this is an oversimplification of the law, but it goes farther than that.  This is a misstatement of the new act because there are circumstances in which Judges can still order lifetime alimony, and in any marriage over 20 years the alimony order would be indefinite.

Under Old Law, Lifetime Alimony was the Default, not "rare".

Ms. Murphy correctly points out that the outcry which was partly responsible for passing of the new law surrounded primarily men (and/or their second wives) who were upset about lifetime alimony awards.  However, she claims that under the old law "Lifetime alimony, in such circumstances, is terribly unfair. But it's also rare, especially these days", and that "Lifetime alimony has been a problem, but the system mostly self-corrected when judges stopped routinely ordering it."   This is a gross misstatement of the previous law.

Under the old alimony law lifetime alimony was the only option for judges to order.  Although the orders were technically indefinite because Judges were not allowed to order duration limits, an indefinite endpoint meant that orders were for a lifetime unless there was a future change in circumstances.  This was the same for marriages of 5 years and 20 years.  Whether you look at the law from the perspective of women or men, treating marriages of 5 years and 20 years the same is unfair.

Unknown Effect of new Law on Stay-At-Home Mothers


The other inaccuracy in this editorial, is that Ms. Murphy assumes she knows how this new law will be enforced by Judges. The statutory changes include the ability for judges to take alimony orders into account when making property divisions. So a financially disadvantaged spouse (such as a stay-at-home mom) who has given up job prospects for the marriage might have limited alimony, but could also argue for a greater share of the assets. We don't know yet how this brand-new law will play out and whether or not it will be unfair to women or men, or neither, because we don't yet know how the Judges and the Appeals Court will interpret and enforce the various provisions as a whole.

Conclusion: Some Perspective is Important

While Ms. Murphy's effort to criticize the new law goes too far because of her failure to understand the old law, it is important to recognize that her conclusion might still be correct.  Because we don't yet know how the courts will interpret this new law, we don't know if it will have a greater negative impact on women, as she assumes.  If it does have a such a strong negative impact then perhaps some changes might be needed again in the future.

The history of alimony and divorce is traditionally unfavorable to women.  Until 1870 women couldn't own property in most circumstances and even after that alimony was typically used as a property substitute, and usually only awarded in cases where wrongdoing by the husband was proven.  For women who were unable to earn the same way as men, and much more likely to be stay-at-home mothers, this was truly unfair and unreasonable.  In Massachusetts, a more specific law requiring an alimony evaluation based on need and ability wasn't entered until 1974 along with no-fault divorce.  This law finally recognized the realities of a divorce, and the needs of the disadvantaged spouse.

But a lot has changed since 1974 and it is the job of the law to evolve with society.  The Alimony Reform Act of 2011 was a reaction to an unfair situation created by the blanket lifetime alimony ordered under the old law.  To ignore the fact that the old law was archaic and downplay lifetime alimony orders is just as ridiculous as suggesting that women still shouldn't be able to own property.

On a personal note:

As a Father, I recognize that even though my wife went back to work after both of our children were born, the time she lost for maternity leave and the time she misses work when the children are sick negatively affects her career path.  Having children hasn't had the same impact on my career being self-employed. I don't know if there's a fair or perfect way to compensate her for that other than appreciating her and telling her that I appreciate her. This article looks only at the narrow idea of compensating mothers for this loss with alimony orders in a divorce.

The reality is that society as a whole could do a better job of recognizing the value of motherhood and compensate women better for this service they provide to society, instead of only giving them an advantage if they get divorced.  Since 1974, I think American society has gotten better at recognizing the value of motherhood and women in society, and the greater likelihood that both parents work is something the law must evolve to recognize.  Because of that, I think The Alimony Reform Act of 2011 is a step in the right direction and contrary to Ms. Murphy I think we should keep moving forward instead of looking back.


Thanks to Amanda Glinski for bringing this editorial to our attention.

Alimony Reform Update: Committee Hearing on Wednesday 5/18

The Alimony Reform Act of 2011 has had a lot of buzz in the past few months. Since it's filing, over 130 legislators have signed on as Petitioners and many family law practitioners have expressed their support for the bill.

Despite some reservations we at Kelsey & Trask, P.C. have about the bill, we believe that it is a significant improvement over the current alimony law in Massachusetts. In addition, we recognize that some of the provisions that we think could be improved (such as the child support integration) were the result of significant compromise from all of the interested parties (lawyers, judges, citizens and advocates).

Therefore, we at Kelsey & Trask, P.C. support the efforts of Bill Sponsor Gale Candaras and the numerous petitioners to have this bill entered into law as soon as possible.

If you agree, voice your opinion to your state legislators. The Joint Committee on the Judiciary is holding a hearing this Wednesday, May 18, 2011 at 1:00 P.M. in the Gardner Auditorium.

If you're interested in seeing a summary of the bill's changes and viewing a calculator for the proposed formulas visit MassAlimonyFormula.com.

Sexting now considered a Crime against Chastity, Morality, Decency and Good Order in MA.

On April 12, 2010 the Massachusetts legislature passed AN ACT RELATIVE TO ASSAULT AND BATTERY BY MEANS OF A BODILY SUBSTANCE UPON CORRECTIONAL FACILITY EMPLOYEES AND EXPANDING THE PROHIBITION ON THE DISSEMINATION OF OBSCENITY.

The second portion of the Act has to do with amending the Commonwealth's laws against distributing obscenity to close a gap in the law.

The previous statue defined "matter" as

"any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances."

The new law expands this definition by adding:

"or any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system."

In addition, the definition of “visual material” is amended, by inserting after the word “computer”, the following words: ", telephone or any other device capable of electronic data storage or transmission."

These changes will expand charges for distribution of obscene material to include sexting, and other cell phone related distribution.

This is just one more reason to be careful and think twice about what you e-mail, text, or otherwise send electronically. For more information about why you should be careful about texting see our previous post: What you text can and will be used against you!