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发帖数: 29846 | 1 Changes Meant to Protect the Poor Are Mandating Bigger Alimony Payouts
By SOPHIA HOLLANDER
When New York adopted no-fault divorce in 2010 after decades of failed
attempts, lawyers and families praised legislators for eliminating the need
for one of the bitterest elements of a divorce: assigning blame.
More than a year later, critics say more troubling aspects of the reform
package have emerged.
A New York divorce law passed in 2010 set a strict formula for judges
awarding temporary alimony. Sondra Miller, a retired judge, and WSJ reporter
Sophia Hollander discuss how a formula designed to protect low-income
spouses has had unintended consequences for some affluent New Yorkers.
One of the changes included a little-noticed law that set a strict formula
for judges awarding temporary alimony during the divorce. The statute was
meant to provide more consistency and ensure that low-income New Yorkers who
couldn't afford attorneys were treated fairly.
In dozens of interviews, lawyers, academics and divorcing spouses said that
despite the law's honorable intent, it is exacting a steep toll. For some
more affluent couples, the law is creating shifts in income that don't level
the playing field so much as turn it upside-down, transforming the richer
spouse into the poorer one, sometimes dramatically so.
No independent measure of the law is yet available. Still, a host of legal
associations, including the Women's Bar Association of the State of New York
, have called for its repeal.
"It really impacts the payer spouse in a way that sometimes is draconian,"
said Sondra Miller, a retired judge who led a state commission between 2004
and 2006 to evaluate New York's divorce laws and currently mediates divorces
. "It's not a well-thought-out piece of legislation."
Supporters acknowledge some flaws but believe they are fixable.
They point to successes, including a woman who was initially awarded $285 a
month in family court, despite earning $70,000 a year less than her husband.
After filing for divorce, she was awarded monthly payments of more than $2,
000 under the new formula.
Sondra Miller, a former judge who now works as a lawyer and mediator, has
been a staunch critic of the new law.
"I actually think it's a good law, and I differ with most of the matrimonial
lawyers," said Manhattan attorney Harold Mayerson. "You need to look at
what the law was trying to do, and it was trying to remedy a problem
throughout the state of New York that judges were not being uniform in terms
of trying to see that the non-moneyed spouse got a fair shake."
"There are areas that have to be clarified," he added, "but that is not the
first time the Legislature passes a law that needs clarification from the
courts."
The law is now being analyzed by the state's independent Law Revision
Commission, with a report expected in April. That would leave a narrow
window for making any changes before the legislative session ends in June.
"There were some mistakes in that law which we are all in agreement should
be fixed," said Antoinette Delruelle, a senior attorney at the New York
Legal Assistance Group, a nonprofit that works with low-income New Yorkers.
Emily Ruben is an advocate who helped draft the new law.
But she strongly disagreed with those who want to make the formula less
binding on judges. "If it's advisory, it would lose all of its effect," she
said. "Having a formula is really, really essential."
Few areas of divorce law are as fraught as alimony, also known as
maintenance. Across the country, states have been experimenting with a
variety of guidelines, formulas and rationales behind the awards, including
movements in New Jersey and Connecticut to make the laws less onerous to the
payer spouse, who is usually the husband.
Previously, New York judges had broad discretion to determine support awards
during and after the divorce. Those who couldn't afford attorneys, often
women, were at a disadvantage.
Still, the formula applies to individuals earning up to $524,000 a year and
looks primarily at salary. The law is silent on how judges should address
factors more common with wealthier couples, such as fluctuating annual
bonuses, savings accounts and mortgage payments.
It is "just pure redistribution of wealth brought down to the family level,"
said Timothy Tippins, a former president of the New York state chapter of
the American Academy of Matrimonial Lawyers and now an adjunct professor at
Albany Law School. "They've dropped any pretense of predicating the award on
the actual needs or circumstances of the parties."
In 2009, investment banker Jeffrey Goldberg and his wife, Jill, lived with
their three children in a large house in the Long Island suburb of Syosset.
A live-in nanny helped with child care and did the family's laundry. Mr.
Goldberg said they frequently went out to dinner and took vacations to
Disney World.
After Mr. Goldberg's wife filed for divorce in 2010, a court ruled that his
annual income was $500,000, the majority of which was due to a substantial
bonus.
Once the formula was applied, and a judge added other household and personal
expenses and child support, Mr. Goldberg's monthly payment was determined
to be at least $17,244, with additional expenses that varied. His take-home
pay adjusted for taxes was slightly less than $12,000, he said.
When his 2011 bonus arrived, he said it was substantially less than it had
been before: $70,000. In August he was laid off.
"I need to pay in excess of 100% of my income in order to provide the
support that the court felt was necessary," Mr. Goldberg said. He said he
has drained his savings and is now using funds from his retirement account
to cover costs. "This can't possibly be the intended result."
At the time of the divorce filing, Ms. Goldberg, who has a master's degree,
earned $103,000 a year and had a savings account of $250,000, according to
court papers. She calculated her monthly expenses at just over $18,000,
nearly the amount of her monthly award from her husband. He also was
directed to pay $30,000 of her legal fees.
After he lost his job, Mr. Goldberg continued paying child support but
stopped making any other payments, both sides said.
"I just want what is fair and right and going to be in the best interest of
the kids," Ms. Goldberg said, adding that she had used half her savings
account to cover costs.
Mr. Goldberg switched attorneys and appealed the decision. This month, the
couple learned that the court had made "mistakes," Ms. Goldberg said. Now
both are awaiting a new ruling.
"It was a new law—that is what they told us—and there were a lot of
features in the law that they didn't quite understand," said Ms. Goldberg. "
I went into this system like anyone else, just trying to get divorced and
just because there was this new law, it spiraled."
"They just took this law and used us as guinea pigs," she continued. "Jeff
and I are paying for it."
The law was changed at the 11th hour from covering post-divorce awards to
temporary maintenance, creating some confused language in the statute, all
sides agree. Legislators say the formula was intended to be an experiment. (
Please see sidebar.)
"Interim was always designed to be that—an interim proposal until we could
have consensus on changes to final maintenance laws," said Assemblywoman
Helene Weinstein, a Brooklyn Democrat who chairs the Assembly Standing
Committee on Judiciary.
Judges have the authority to mitigate any ill effects by deviating from the
formula, she said.
But doing so requires them to write a detailed explanation that many called
too time-consuming in a state court system burdened by budget cuts—
including $170 million last year—and increased case loads.
Some judges have also noted the constraints on their ability to adjust
awards. In a January 2011 decision, Brooklyn Judge Jeffrey Sunshine noted
that the statute's language left him little room to change the support
payments "as an act of equity."
In February, an appeals court issued the first ruling on the new law, but
some lawyers expressed disappointment that it didn't provide more clarity on
what spouses could expect to pay under the formula.
It did confirm that the defendant, Manhattan banker Jasvinder Singh Khaira,
was responsible for his wife's legal fees even though they had already been
covered by her parents. That ruling was based on another new law, which
requires the richer spouse to cover legal fees for both parties, even when
each person has substantial personal resources.
The combined result of the new laws can be the opposite of what the law
intended, critics say.
"If you're sitting on the other end of a case where someone is paying your
attorneys' fees and they're providing you with sufficient support to
maintain the life you had before the divorce, and you hate the other person,
you can just sit and ride out the process," said Manhattan matrimonial
lawyer Juan Luciano. "I've been on both ends of that."
Supporters of the law noted that a similar outcry arose after New York
instituted a formula for child-support awards in 1989, which is now widely
regarded as fair. They also point out that the AAML recommended similar
alimony guidelines in a recent report.
The AAML disputes that characterization. "It was never intended to be in any
state an official guideline that a state could adopt," said James
Hennenhoefer, then-president of the AAML. Mr. Hennenhoefer dismissed
similarities with child support.
Spousal support is "enormously more complicated," he said, noting that
children's expenses are fixed and they have no ability to earn money and
live independently, unlike adults.
Now all sides are waiting for the ruling of the Law Revision Commission,
which is already two months behind schedule as it sorts through arguments
and gathers its own data.
There is a "definite tug of war" between recognizing the value of a formula
for low-income people and the problems of shoehorning complicated, unique
marriages into a single approach, said Rose Mary Bailly, the commission's
executive director.
The commission's role is only advisory. Still, its voice carries weight and
legislators said they were awaiting the report.
"Frankly, that group is holding us up," said Westchester Assemblywoman Amy
Paulin, the primary sponsor of the alimony law. She added that she thinks
the new law is "better for women. But we do want to make it fair, and we do
want to respect everyone involved."
"You don't want to have to revise it a third time," she added. "You want to
get all the problems once." | l****z
发帖数: 29846 | 2 The last quote of this article makes me want to cry. The legislator says the
law is "better for women." It's incredible that a state legislator would
openly admit to such vile bigotry.
Can you imagine if she said the law is "better for white people" or "better
for Catholics" or "better for men"? So the main sponsor of this law openly
admits she was trying to favor her own tribe. And it turns out to be unfair.
And we're all surprised? | P*******e
发帖数: 96 | 3 Better for woman? It will just prevent marriage and generate more single
parent families. Oh wait, isn't this the original plan? |
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