NY Divorce Essentials
Maintenance in New York
Modification of Maintenance
Domestic Relations Law 236-B(9)
Domestic Relations Law 248
By J. Douglas Barics
For Part 1 of this article see Introduction to Maintenance
Existing orders of post divorce maintenance may be modified in two general ways. A modification does not seek to challenge the existing order itself, but instead seeks a new order based on circumstances that occurred after the original order was issued.
A modification is fundamentally different than an appeal; as that seeks a review of the original order by a higher court using the same circumstances that gave rise to the order. Nor is a motion to renew or reargue considered a modification, as both those motions are requests to the court to revise the order based on a mistake or new facts.
A. Termination of Maintenance under DRL 248
Pursuant to DRL 248, the court must terminate maintenance paid to a former spouse upon proof that spouse is remarried. This provision is non discretionary; the court must end maintenance upon a former spouse's remarriage.
The 2015 amendments to DRL 248 make it gender neutral. This eliminated the archaic reference to the wife, which implied only a former wife had the right to seek relief under DRL 248, as prior to 1980, many alimony statutes were gender based. Gender based statutes like the old DRL 236 were deemed unconstitutional by the Supreme Court case of Orr v Orr, and New York amended the pre 1980 version of DRL 236 to become the gender neutral DRL 236 Part A. But apparently, the old wording of DRL 248 remained as a legislative oversight.
More important, the 2015 amendment also made the term spouse gender neutral, meaning the revised DRL 248 would include same sex marriages as a basis to terminate maintenance based upon remarriage.
DRL 248 also grants the court the discretion to terminate maintenance when a former spouse is living with a romantic partner and holds him or herself out to be a spouse. Merely living together is insufficient, as illustrated in Bliss v. Bliss, 66 NY2d 382 (Court of Appeals 1985). In Bliss, the ex wife lived with her male companion for over fourteen years, but the ex husband's request to terminate support was denied as there was no proof she was holding herself out to be married. Nor can a court impose a lesser standard to terminate the maintenance. In Florio v. Florio 25 A.D.3d 947 (3rd Dept. 2006) the trial court awarded maintenance to the wife, and ruled that it may be terminated upon her cohabitation with an unrelated male. In modifying this provision, the Appellate Division said it was erroneous to set a standard that differed from the statute.
B Modification of Maintenance under DRL 236 B(9)(b).
Domestic Relations Law 236 B(9)(b)(1) provides in part that:
"Upon application by either party, the court may annul or modify any prior order or judgment made after trial as to maintenance, upon a showing of the payee's inability to be self-supporting or upon a showing of a substantial change in circumstance, including financial hardship or upon actual full or partial retirement of the payor if the retirement results in a substantial change in financial circumstances. Where, after the effective date of this part, an agreement remains in force, no modification of an order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the judgment or order as modified shall supersede the terms of the prior agreement and judgment for such period of time and under such circumstances as the court determines. "
Thus to modify an award of maintenance based upon a stipulation of settlement, the moving party must show extreme hardship. However when the order of maintenance arises from a court order or judgment, the standards for a modification is much less:
- The payee's inability to be self sufficient
- A substantial change in circumstances
- Financial Hardship
- Partial or full retirement of the payor if it results in a substantial change of financial circumstances
Modifications may be brought in Supreme Court by a motion or in Family Court by verified petition, provided that Supreme Court did not retain exclusive jurisdiction.
The article "Modification of Maintenance in New York" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at firstname.lastname@example.org or (631) 864-2600. For more articles and information, please visit www.jdbar.com or www.jdbar.us
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J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.