Alton Abramowitz, left, chair of the New York State Bar Association’s Family Law Section, and John Bonacic, Senate Judiciary Committee chair, chief sponsor of the Senate Bill ()
ALBANY – Leaders of the state’s matrimonial bar breathed a sigh of relief when the Legislature concluded its 2014 session without passing a bill that would have used a formulaic approach to curb judicial discretion over post-divorce maintenance payments.
The bill, A9606/S7266, also would have created a schedule for courts to follow linking post-divorce maintenance to the length of the marriage.
“The feeling amongst our members is that the legislation as currently drafted is unwieldy, that it places an undue burden on judges in the sense that they will have to write decisions if they want to deviate from guidelines,” said Alton Abramowitz, chairman of the New York State Bar Association’s Family Law Section and partner at Mayerson Abramowitz & Kahn. “That is going to generate more litigation, because the guidelines in their current form do not fit every case. You simply can’t put a round peg into a square hole.”
The New York chapter of the American Academy of Matrimonial Lawyers, the New York Women’s Bar Association and the Nassau County Bar Association’s Matrimonial Law Committee also opposed the legislation.
The bill reached the main calendar in the Senate, but it was not called up for a vote before the Legislature adjourned on June 20. It died in the Codes Committee in the Assembly.
Its chief sponsor in the Senate, Judiciary Committee Chairman John Bonacic, R-Mount Hope, said he felt the bill provided the “predictability and consistency” in awarding final maintenance that he has sought since 2010, when the adoption of no-fault divorce prompted a wider revision of state divorce laws.
At that time, the state established standards for setting temporary maintenance that rely on a series of formulas while divorces were being worked out. Women’s advocates said the formulaic approach was needed to financially protect the “non-monied” spouse—typically, the wife—when a couple separated in advance of divorcing.
The groups that supported the post-divorce maintenance bill included the Legal Aid Society of New York City, the New York Legal Assistance Group (NYLAG) and the Empire Justice Center. They argued that their clients, many of whom are at risk of domestic violence, would benefit from the certainty of a final maintenance system based on common standards.
“For the past year, we have reviewed an extensive report from the Law Revision Commission, held a Senate Judiciary public hearing on the issue, and have kept an open forum to comment on the subject,” Bonacic said in a statement released by his office. “Based on the information we received, we came up with a well-balanced bill that I will continue to push forward into the next legislative session.”
The measure was billed by Bonacic and its chief Assembly sponsor, Assemblywoman Helene Weinstein, D-Brooklyn, as the final major reform of New York’s divorce statute that began with the 2010 adoption of no-fault.
In a 2013 report ordered by the Legislature, the state Law Revision Commission recommended using mathematical formulas to set both temporary and post-divorce maintenance as well as capping a couple’s combined adjusted gross income for application of those formulas at the same level as that used to determine child support payments under the Child Support Standards Act (NYLJ, May 20, 2013). That annual gross income total is currently $141,000.
Commission Chairman Peter Kiernan, of counsel at Schiff Hardin, said the income standard in the child support act would encompass most of the 50,000 couples seeking divorces in New York state annually.
This year’s bill would have reduced the income cap from $524,000 to $200,000 for both temporary and post-divorce maintenance. It would not have adopted the child support income standard favored by Kiernan’s commission.
Judges currently set final maintenance levels based on a number of factors, including the amount due spouses in the equitable distribution of their assets, their projected future expenses and future income.
Matrimonial lawyers said they favor retaining that judicial discretion where divorcing couples are in higher-income brackets.
“The judges that are hearing these cases are astute, and there is no reason to take away that discretion for fear that they will abuse it,” said Michael Stutman, a Mishcon de Reya partner and president of the New York chapter of the American Academy of Matrimonial Lawyers.
Abramowitz, a columnist for the Law Journal on divorce law, added, “Judges are doing a good job. You read the decisions; They are thoughtful. It is rare where you see a reversal of a judge on the amount of the alimony or the duration, with the exception of upstate, where some of the longer awards have gotten cut down.”
Matthew Cooper, a justice in a matrimonial part of Supreme Court in Manhattan, said the temporary maintenance approach adopted in 2010 has created “myriad” problems for judges, especially with cases involving higher-income spouses. He said the law obligates judges to write rulings, often lengthy and time-consuming, when they feel they need to deviate from the formulas.
Cooper said in an interview that his same objections would apply should the Legislature extend temporary maintenance formulas to post-divorce maintenance and further reduce the discretion judges have traditionally had in that area.
“My overall sense is that as judges in matrimonial parts, we want to be able to have the flexibility to deviate,” he said. “It is extremely difficult to be constrained by calculations in areas where, usually, only customized solutions will work.”
The state bar’s Family Law Section also objected to imposing post-divorce maintenance awards according to a stringent schedule, saying it exceeds typical durational limits.
For marriages that lasted between 20 and 25 years, for instance, maintenance would continue for 100 percent of the length of the marriage—leading, Abramowitz said, to payment obligations for some monied ex-spouses into their 70s or 80s.
Lee Rosenberg, partner in Saltzman Chetkof & Rosenberg in Garden City, said the standardized guidelines that may work in different areas of the law—such as sentencings in criminal cases—do not translate to many of the maintenance decisions that judges make in complicated divorce cases.
“These are real people with real issues and one size does not fit all,” said Rosenberg, the immediate past chairman of the Nassau County Bar Association’s matrimonial committee. “These are families in really difficult situations that have to be addressed on an individualized basis.”
Support for Changes
While many matrimonial lawyers opposed the proposed reform, advocates for lower-income clients supported it.
NYLAG senior attorney Antoinette Delruelle said the criticism over standardizing final maintenance reminds her of the controversy that erupted when the formula-based payments under the Child Support Standards Act were being adopted in New York in the late 1980s.
“Everybody predicted doom,” she said. “Everyone predicted that you would have all these non-custodial parents who were going to have to live in a car and it was the end of the world. Now, I don’t know of a single lawyer or judge who says, ‘Yes we should go back to those [earlier] days.’”
Judges figured out when fairness required deviating from the child support standards, and they would do so again with a formula-based final maintenance system, Delruelle said.
Emily Ruben, attorney-in-charge of the Brooklyn Neighborhood Office of the Legal Aid Society, said the child support payment system has tended to defuse potentially violent domestic situations between spouses. A workable final maintenance system could do the same thing, she said.
“For domestic violence victims, it is very scary and can be very dangerous to be asking for money such as maintenance and child support from abusers,” Ruben said. “But with the child support payments, standardizing it makes the person asking look not quite so evil in the payers’ minds. You have the judge saying, ‘This is what it is.’ It makes it easier.”
Ruben said the failure of the final maintenance reform bill this year may have taught all of the interested parties a lesson: That they should work together in the future to resolve their differences if they want to get a bill passed.
“Having had the experience of really not getting any place because we could not get together, I think that attempts will be made to reach out to each other in the future to reach common ground,” she said.
“As far as I know, no one in the Legislature has reached out to us,” the matrimonial academy’s Stutman said. “Certainly no one has reached out to any members of the academy [of Matrimonial Lawyers] and said, ‘Would you come by one day and give us a hand in drafting this or sit down and help us with it?’”