Since the enactment of the Equitable Distribution Law in 1980 (Chapter 281 of the Laws of 1980), “national surveys have reported that women and children tend to suffer an immediate decline in their standard of living in the aftermath of divorce while men enjoy an increased standard of living.”1 This is not surprising given that a woman’s earnings for the same job have yet to keep pace with a man and, the “glass ceiling” remains intact. The economic reality is that a woman leaving the workforce for a 10 to 20 year hiatus to raise a family, re-enters older, less skilled and often in an entry level position. Think of the senior associate in a law firm, who worked 80-100 hours per week on the path to partner. If the senior associate, having spent 5-7 years on the partners track, leaves the firm to raise a family, is there any doubt that the “senior” associate would re-enter on a track at a pay scale very different from the one she left 10 or 20 years prior?
When the legislature enacted the Equitable Distribution Law, the concept of marriage as an economic partnership emerged; alimony, the historical equivalent of lifetime spousal support, was replaced with maintenance and equitable distribution of marital property as the underpinning of the post divorce budget.
Domestic Relations Law (DRL) §236 B (6) (a) enumerates the 11 factors a court shall consider in determining the amount and duration of maintenance and DRL §236 B (6) (c) enumerates events upon which maintenance terminates.
DRL §236 (B) (6) (a) factors:
1. the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
2. the duration of the marriage and the age and health of both parties;
3. the present and future earning capacity of both parties;
4. the ability of the party seeking maintenance to become self supporting and, if applicable, the period of time and training necessary therefore;
5. reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
6. the presence of children of the marriage in the respective homes of the parties;
7. the tax consequences to each party;
8. 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;
9. the wasteful dissipation of marital property by either spouse;
10. any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
11. any other factor which the court shall expressly find to be just and proper.
DRL §236 (B) (6) (c) events terminating maintenance:
• death of either party;
• recipients valid or invalid marriage; or
• modification pursuant to DRL §236 (9) (b) or DRL§248 (wife habitually living with another man and holding herself out as his wife, although not married to such man).
Noticeably absent from the enumerated factors that a Court shall consider in awarding maintenance is the concept of “marital fault.” Arguably, this “catch all” eleventh factor permits a court to address fault. However, as the case law reflects since 1980, marital fault as a factor for consideration in awarding maintenance as well as dividing marital assets is all but non existent.
The final death knoll to the concept of fault as an economic factor lurks in proposed “No Fault” Divorce legislation which emerges each year in Albany. Two proposed bills during 2007/2008 session died in the Judiciary Committee. Both bills proposed that New York recognize a form of irretrievable breakdown of the marriage as a legal reason for divorce and thereby eliminate marital fault as a condition precedent to divorce. Advocates of “no fault divorce” legislation readily assert that the acrimony of litigants will no longer be exacerbated by requiring fault grounds to sever marital bonds and as a corollary, the level of domestic violence will subside.
However, entwined with the benefits to emerge from a “no fault” ground for divorce is the loss of economic leverage by the non-monied spouse who opposes divorce. Compelling a party to prove marital fault is a strategy frowned upon by both the bench and the bar in marital negotiations. Nevertheless, requiring plaintiff to prove fault remains a useful tool when representing the non-monied spouse, typically the homemaker. It often moves settlement away from the presumptive 50-50 paradigm of division of assets and frequently increases the maintenance obligation and/or the duration of maintenance.
Assembly Bill 10446 introduced in April, 2008, (unlike previous bills that solely addressed the no fault issue), proposed, inter alia, reformation of the grounds for divorce as well as the criteria for an award of permanent maintenance renamed therein as “post marital income obligation.”2 Similar to the Child Support Standards Act, (Family Court Act §413 and Domestic Relations Law §240), the post marital income obligation (permanent maintenance) would be calculated pursuant to a statutory formula whereby the parties’ income is capped and the Court required to state its reasons for deviation from the formula in determining a party’s post-marital income obligations. Further, income from all sources would be considered in determining the award, as is the case presently under the Child Support Standards Act. For example, income generated from separate property of a party is not generally considered in an award of maintenance, but is considered for child support obligations.
The bill as drafted, attempted to address reformation of the domestic relations law globally, and indirectly, the chilling effect of no fault on the post divorce settlement of the homemaker spouse. The actual caps and percentages may not prove sufficient, but, at least, some acknowledgement was given to addressing the impact of no fault upon the homemaker.
New York’s matrimonial courts struggle daily in fashioning equitable distribution and maintenance awards. A case in point is the recent decision in J.S. v. J. S., (857 N.Y.S. 2d 427, Supreme Court, Nassau County, March 17, 2008.) The Court, at the commencement of the action, was faced with a soon to be retiring husband (age 58) and his 57-year-old homemaker wife. Cognizant of the limited retirement assets for distribution, and the husband’s imminent retirement at age 65, the court, in a case of first impression, considered the future economic reality of the payor’s earning potential post-divorce as well as, his work life expectancy in determining a non durational award of maintenance.
In essence, the court acknowledged that people are living well into their 80’s or 90’s. In awarding non-durational maintenance, the court reasoned, that not only must consideration be given to the statutory factors effecting the wife’s ability to be self-supportive such as, her age, health, education, skills and work history as well as the length of the marriage, but also whether the payor spouse will have assets from which to pay support obligations post retirement.
Recognizing the wife as incapable of becoming self-supportive, the court, nevertheless refused “enslaving the historic wage earner to indefinite years of employment beyond any reasonable expected retirement.” The court imputed income to the wife of approximately $20,000 per year notwithstanding her claims of disability that were unsubstantiated at trial and imputed income of $110,000 to husband based upon his ability to earn. Looking to national vital statistics averages, the court noted husband has a life expectancy of 20 years and work life of approximately 4 years; the wife, had a life expectancy of 24 years, and work life of 3 years. Given the limited retirement assets and savings, the court determined the husband had no choice but to work beyond age 65 to age 70 and wife, for the same reasons, must work to age 70. The wife, ending a 38-year marriage, was ultimately awarded maintenance for a duration not to exceed 10 years.
Is there now judicial precedent for termination of maintenance based upon the payor retiring, and if so, at what age? The economic survival of the dependent homemaker hangs in the balance. No doubt, amending the Domestic Relations Law to alleviate domestic strife and family acrimony for divorcing litigants through no fault legislation is long overdue. But in efforts to relieve marital acrimony, the legislature must not overshoot the target. For 28 years, the financial erosion of the homemaker has gone unaddressed. If ever the time for legislative redress of the homemaker’s economic grievances was needed, it’s now.
Nancy E. Gianakos is a matrimonial and family law practitioner, Of Counsel, to Albanese & Albanese, Garden City, NY; admitted in CT (1981), NY (1993) and NJ (1992) and is a member of the NYSBA, Nassau County Matrimonial and Familly Law Committees, the American Family Law Inns of Court, the New York Association of Collaborative Professionals and serves as a contributing matrimonial focus editor for the Nassau Lawyer. For more information and articles published by Ms.Gianakos go to www.albaneselegal.com.
1. McKinney’s Consolidated Laws of NY, DRL § 236 Practice Commentaries by Alan D. Scheinkman, p. 206
2. Bill No. 10446, NYS Assembly, April 2, 2008, see www.assembly.state.ny.us/log
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