§ 412 — Married person's duty to support spouse

New York § 412

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 1: Jurisdiction and Duties of Support
• Art. 4: Support Proceedings

Text

§ 412. Married person's duty to support spouse. 1. A married person is\nchargeable with the support of his or her spouse and, except where the\nparties have entered into an agreement pursuant to section four hundred\ntwenty-five of this article providing for support, the court, upon\napplication by a party, shall make its award for spousal support\npursuant to the provisions of this part.\n 2. For purposes of this section, the following definitions shall be\nused:\n (a) "payor" shall mean the spouse with the higher income.\n (b) "payee" shall mean the spouse with the lower income.\n (c) "income" shall mean income as defined in the child support\nstandards act and codified in section two hundred forty of the domestic\nrelations law and section four hundred thirteen of this article without\nsubtracting spousal support actually paid or to be paid to a spouse that\nis a party to the instant action pursuant to subclause (C) of clause\n(vii) of subparagraph five of paragraph (b) of subdivision one-b of\nsection two hundred forty of the domestic relations law and subclause\n(C) of clause (vii) of subparagraph five of paragraph (b) of subdivision\none of section four hundred thirteen of this article.\n (d) "income cap" shall mean up to and including one hundred\neighty-four thousand dollars of the payor's annual income; provided,\nhowever, beginning March first, two thousand twenty and every two years\nthereafter, the income cap amount shall increase by the sum of the\naverage annual percentage changes in the consumer price index for all\nurban consumers (CPI-U) as published by the United States department of\nlabor bureau of labor statistics for the prior two years multiplied by\nthe then income cap and then rounded to the nearest one thousand\ndollars. The office of court administration shall determine and publish\nthe income cap.\n (e) "guideline amount of spousal support" shall mean the sum derived\nby the application of subdivision three or four of this section.\n (f) "self-support reserve" shall mean the self-support reserve as\ndefined in the child support standards act and codified in section two\nhundred forty of the domestic relations law and section four hundred\nthirteen of this article.\n (g) "agreement" shall have the same meaning as provided in subdivision\nthree of part B of section two hundred thirty-six of the domestic\nrelations law.\n 3. Where the payor's income is lower than or equal to the income cap,\nthe court shall determine the guideline amount of spousal support as\nfollows:\n (a) Where child support will be paid for children of the marriage and\nwhere the payor as defined in this section is also the non-custodial\nparent pursuant to the child support standards act:\n (1) the court shall subtract twenty-five percent of the payee's income\nfrom twenty percent of the payor's income.\n (2) the court shall then multiply the sum of the payor's income and\nthe payee's income by forty percent.\n (3) the court shall subtract the payee's income from the amount\nderived from subparagraph two of this paragraph.\n (4) the court shall determine the lower of the two amounts derived by\nsubparagraphs one and three of this paragraph.\n (5) the guideline amount of spousal support shall be the amount\ndetermined by subparagraph four of this paragraph except that, if the\namount determined by subparagraph four of this paragraph is less than or\nequal to zero, the guideline amount of spousal support shall be zero\ndollars.\n (6) spousal support shall be calculated prior to child support because\nthe amount of spousal support shall be subtracted from the payor's\nincome and added to the payee's income as part of the calculation of the\nchild support obligation.\n (b) Where child support will not be paid for children of the marriage,\nor where child support will be paid for children of the marriage but the\npayor as defined in this section is the custodial parent pursuant to the\nchild support standards act:\n (1) the court shall subtract twenty percent of the payee's income from\nthirty percent of the payor's income.\n (2) the court shall then multiply the sum of the payor's income and\nthe payee's income by forty percent.\n (3) the court shall subtract the payee's income from the amount\nderived from subparagraph two of this paragraph.\n (4) the court shall determine the lower of amounts derived by\nsubparagraphs one and three of this paragraph.\n (5) the guideline amount of spousal support shall be the amount\ndetermined by subparagraph four of this paragraph except that, if the\namount determined by subparagraph four of this paragraph is less than or\nequal to zero, the guideline amount of spousal support shall be zero\ndollars.\n (6) if child support will be paid for children of the marriage but the\npayor as defined in this section is the custodial parent pursuant to the\nchild support standards act, spousal support shall be calculated prior\nto child support because the amount of spousal support shall be\nsubtracted from the payor's income and added to the payee's income as\npart of the calculation of the child support obligation.\n 4. Where the payor's income exceeds the income cap, the court shall\ndetermine the guideline amount of spousal support as follows:\n (a) the court shall perform the calculations set forth in subdivision\nthree of this section for the income of the payor up to and including\nthe income cap; and\n (b) for income exceeding the cap, the amount of additional spousal\nsupport awarded, if any, shall be within the discretion of the court\nwhich shall take into consideration any one or more of the factors set\nforth in paragraph (a) of subdivision six of this section; and\n (c) the court shall set forth the factors it considered and the\nreasons for its decision in writing or on the record. Such decision,\nwhether in writing or on the record, may not be waived by either party\nor counsel.\n 5. Notwithstanding the provisions of this section, where the guideline\namount of spousal support would reduce the payor's income below the\nself-support reserve for a single person, the guideline amount of\nspousal support shall be the difference between the payor's income and\nthe self-support reserve. If the payor's income is below the\nself-support reserve, there shall be a rebuttable presumption that no\nspousal support is awarded.\n 6. (a) The court shall order the guideline amount of spousal support\nup to the cap in accordance with subdivision three of this section,\nunless the court finds that the guideline amount of spousal support is\nunjust or inappropriate, which finding shall be based upon consideration\nof any one or more of the following factors, and adjusts the guideline\namount of spousal support accordingly based upon consideration of the\nfollowing factors:\n (1) the age and health of the parties;\n (2) the present or future earning capacity of the parties, including a\nhistory of limited participation in the workforce;\n (3) the need of one party to incur education or training expenses;\n (4) the termination of a child support award during the pendency of\nthe spousal support award when the calculation of spousal support was\nbased upon child support being awarded which resulted in a spousal\nsupport award lower than it would have been had child support not been\nawarded;\n (5) the wasteful dissipation of marital property, including transfers\nor encumbrances made in contemplation of a support proceeding without\nfair consideration;\n (6) the existence and duration of a pre-marital joint household or a\npre-support proceedings separate household;\n (7) acts by one party against another that have inhibited or continue\nto inhibit a party's earning capacity or ability to obtain meaningful\nemployment. Such acts include but are not limited to acts of domestic\nviolence as provided in section four hundred fifty-nine-a of the social\nservices law;\n (8) the availability and cost of medical insurance for the parties;\n (9) the care of children or stepchildren, disabled adult children or\nstepchildren, elderly parents or in-laws provided during the marriage\nthat inhibits a party's earning capacity;\n (10) the tax consequences to each party;\n (11) the standard of living of the parties established during the\nmarriage;\n (12) the reduced or lost earning capacity of the payee as a result of\nhaving forgone or delayed education, training, employment or career\nopportunities during the marriage;\n (13) the contributions and services of the payee as a spouse, parent,\nwage earner and homemaker and to the career or career potential of the\nother party;\n (14) any other factor which the court shall expressly find to be just\nand proper.\n (b) Where the court finds that the guideline amount of spousal support\nis unjust or inappropriate and the court adjusts the guideline amount of\nspousal support pursuant to this subdivision, the court shall set forth,\nin a written decision or on the record, the guideline amount of spousal\nsupport, the factors it considered, and the reasons that the court\nadjusted the guideline amount of spousal support. Such decision, whether\nin writing or on the record, shall not be waived by either party or\ncounsel.\n (c) Where either or both parties are unrepresented, the court shall\nnot enter a spousal support order unless the court informs the\nunrepresented party or parties of the guideline amount of spousal\nsupport.\n 7. When a party has defaulted and/or the court makes a finding at the\ntime of trial that it was presented with insufficient evidence to\ndetermine income, the court shall order the spousal support award based\nupon the needs of the payee or the standard of living of the parties\nprior to commencement of the spousal support proceeding, whichever is\ngreater. Such order may be retroactively modified upward without a\nshowing of change in circumstances upon a showing of substantial newly\ndiscovered evidence.\n 8. In any action or proceeding for modification of an order of spousal\nsupport existing prior to the effective date of the chapter of the laws\nof two thousand fifteen which amended this section, brought pursuant to\nthis article, the spousal support guidelines set forth in this section\nshall not constitute a change of circumstances warranting modification\nof such spousal support order.\n 9. In any action or proceeding for modification where spousal support\nor maintenance was established in a written agreement providing for\nspousal support made pursuant to section four hundred twenty-five of\nthis article or made pursuant to subdivision three of part B of section\ntwo hundred thirty-six of the domestic relations law entered into prior\nto the effective date of the chapter of the laws of two thousand fifteen\nwhich amended this section, brought pursuant to this article, the\nspousal support guidelines set forth in this section shall not\nconstitute a change of circumstances warranting modification of such\nspousal support order.\n 10. The court may modify an order of spousal support upon a showing of\na substantial change in circumstances. Unless so modified, any order for\nspousal support issued pursuant to this section shall continue until the\nearliest to occur of the following:\n (a) a written stipulation or agreement between the parties;\n (b) an oral stipulation or agreement between the parties entered into\non the record in open court;\n (c) issuance of a judgment of divorce or other order in a matrimonial\nproceeding;\n (d) the death of either party.\n