Family Law Update

Several recent changes in family law affect the outcomes that clients can expect in their matrimonial matters. The recent changes affect both custody and financial aspects of divorce.

On the issue of custody, there is a clear shift away from sole custody towards joint custody and shared custody arrangements. Joint custody refers to joint legal custody, where the parents must consult with each other and both parents have decision making power over the child’s health, education and general welfare. This is different from sole custody where only one parent has sole decision making with no obligation to consult with the other parent. Sole custody is becoming increasingly rare. Shared custody refers to joint legal custody and a time split that is approximately 50/50 for each parent. Shared custody may involve a three day/four day alternating schedule every week, alternating weeks, or for maximum stability, having the child reside in the same house while the parents move in and out. A contributing factor to this shift towards joint custody and other arrangements where each parent has substantial time with the children, all the way up to 50/50 shared custody, is the recent change in the economy. The so-called traditional gender roles where the mother is the caregiver while the father is the breadwinner are no longer as prevalent, with many fathers being stay-at-home dads and mothers being the primary earners; or where both parents work substantial hours and need each other’s assistance with caregiving. While there is an increased shift in parents agreeing to such arrangements, courts are still not empowered to impose a joint or shared custody arrangement if parents will not agree to it. So, while the majority of custody cases do settle based on some type of joint custody, if the case goes to trial, the judge is in the unfortunate position of choosing one parent vs. the other as the sole legal custodian. This “all or nothing” consequence motivates many parents to reach an agreement on custody. So we see a shift since the late 1960s where the “tender years doctrine” predominated in the courts, where mothers were routinely awarded custody of the children over the father, particularly with younger children. Now that those traditional gender roles are shifting, a father has a relatively equal chance of being awarded custody if the right circumstances exist.

Another changing area of family law in New York is spousal maintenance, which used to be called alimony. There are generally two stages of spousal maintenance. One is temporary spousal maintenance, which is the support a spouse pays while the divorce is still pending. The second is a final post-divorce maintenance award. In 2010 the legislature enacted a temporary maintenance statute which set forth a very specific formula that courts were required to follow in determining maintenance. It is a mathematical formula based on the disparity in the parties’ income. Although the statute was intended to provide uniformity in awards, akin to the child support standards act, the complexity of the formula and the unaddressed variables have done little to predict maintenance awards, nor to protect the payer from having an insufficient amount of money left after payments are calculated. For example, if the higher income spouse earns $100,000 a year, and is ordered to pay 30% of that income in maintenance, and then another 25% in child support for 2 children, plus the mortgage and private school, after taxes that parent is left with virtually no money to live. Some judges do give credit for payment of additional expenses, but some do not. Because of the unfair results, judges are often using their discretion not to follow the temporary maintenance statute, so, in the end, there is no improved predictability of temporary maintenance awards than before the statute was enacted.

With regard to permanent maintenance, there is presently no formula. This is instead determined by a judge based on the consideration of 20 statutory factors, including the income and property of the parties; the length of the marriage; the need of one party to incur education or training expenses; acts of domestic violence; the ability of the party seeking maintenance to become self-supporting; the presence of children of the marriage in the respective homes of the parties; the need to pay for additional expenses for the children, such as schooling, day care and medical treatment, to name a few. The two different methods of computing temporary versus final awards further adds to unpredictability of maintenance awards, and can vary significantly from courtroom to courtroom.

In May, 2013 the Law Revision Commission issued a final report making recommendations to the legislature on changing the law to address some of the problems that have evolved with the spousal maintenance laws. The recommendations by the Commission include enacting a formula for post-divorce final maintenance, and focusing on some factors more than others. With regard to temporary maintenance, the Commission proposes limiting the duration of maintenance so that the award does not exceed the length of the marriage. It is also noteworthy that spousal maintenance is a gender-neutral statute and applied equally to men or women. With the increase over the past several years in women being the primary or sole wage earners in a family and men as homemakers/stay at home dads, men are increasingly on the receiving end of maintenance awards.

The advent of the “no fault” divorce law in October, 2010 has continued to increase the number of divorce filings in New York State. In just the first year of the law’s passage, divorce filings increased 8%. New York being the last state in the US to adopt a no fault divorce law, the addition of the no fault option in the statute now allowed a spouse to file for divorce by only pleading that the marriage has suffered an irretrievable breakdown for a period of 6 months or longer instead of having to prove a reason, like cruelty or adultery. The courts have predominately held that, unlike the other grounds for divorce, a spouse cannot contest a no-fault divorce. While this doesn’t change a spouse’s ability to drag out litigation over custody or financial issues, eliminating their ability to contest the divorce itself significantly minimizes litigation, and as a result, hugely reduces legal fees and the uncertainty of whether a divorce will be granted.

Lastly, on the subjection of division of assets, New York is currently the only state remaining which entitles a spouse to a share of their spouse’s professional degree or license as part of division of assets. Nevertheless, there is a steady trend in New York towards awarding the non-titled spouse with very little to no part of the assessed value of that degree or license.