Married person's duty to support spouse

§ 412. Married person's duty to support spouse. 1. A married person is
chargeable with the support of his or her spouse and, except where the
parties have entered into an agreement pursuant to section four hundred
twenty-five of this article providing for support, the court, upon
application by a party, shall make its award for spousal support
pursuant to the provisions of this part.

2. For purposes of this section, the following definitions shall be
used:

(a) "payor" shall mean the spouse with the higher income.

(b) "payee" shall mean the spouse with the lower income.

(c) "income" shall mean income as defined in the child support
standards act and codified in section two hundred forty of the domestic
relations law and section four hundred thirteen of this article without
subtracting spousal support actually paid or to be paid to a spouse that
is a party to the instant action pursuant to subclause (C) of clause
(vii) of subparagraph five of paragraph (b) of subdivision one-b of
section two hundred forty of the domestic relations law and subclause
(C) of clause (vii) of subparagraph five of paragraph (b) of subdivision
one of section four hundred thirteen of this article.

(d) "income cap" shall mean up to and including one hundred
eighty-four thousand dollars of the payor's annual income; provided,
however, beginning March first, two thousand twenty and every two years
thereafter, the income cap amount shall increase by the sum of the
average annual percentage changes in the consumer price index for all
urban consumers (CPI-U) as published by the United States department of
labor bureau of labor statistics for the prior two years multiplied by
the then income cap and then rounded to the nearest one thousand
dollars. The office of court administration shall determine and publish
the income cap.

(e) "guideline amount of spousal support" shall mean the sum derived
by the application of subdivision three or four of this section.

(f) "self-support reserve" shall mean the self-support reserve as
defined in the child support standards act and codified in section two
hundred forty of the domestic relations law and section four hundred
thirteen of this article.

(g) "agreement" shall have the same meaning as provided in subdivision
three of part B of section two hundred thirty-six of the domestic
relations law.

3. Where the payor's income is lower than or equal to the income cap,
the court shall determine the guideline amount of spousal support as
follows:

(a) Where child support will be paid for children of the marriage and
where the payor as defined in this section is also the non-custodial
parent pursuant to the child support standards act:

(1) the court shall subtract twenty-five percent of the payee's income
from twenty percent of the payor's income.

(2) the court shall then multiply the sum of the payor's income and
the payee's income by forty percent.

(3) the court shall subtract the payee's income from the amount
derived from subparagraph two of this paragraph.

(4) the court shall determine the lower of the two amounts derived by
subparagraphs one and three of this paragraph.

(5) the guideline amount of spousal support shall be the amount
determined by subparagraph four of this paragraph except that, if the
amount determined by subparagraph four of this paragraph is less than or
equal to zero, the guideline amount of spousal support shall be zero
dollars.

(6) spousal support shall be calculated prior to child support because
the amount of spousal support shall be subtracted from the payor's
income and added to the payee's income as part of the calculation of the
child support obligation.

(b) Where child support will not be paid for children of the marriage,
or where child support will be paid for children of the marriage but the
payor as defined in this section is the custodial parent pursuant to the
child support standards act:

(1) the court shall subtract twenty percent of the payee's income from
thirty percent of the payor's income.

(2) the court shall then multiply the sum of the payor's income and
the payee's income by forty percent.

(3) the court shall subtract the payee's income from the amount
derived from subparagraph two of this paragraph.

(4) the court shall determine the lower of amounts derived by
subparagraphs one and three of this paragraph.

(5) the guideline amount of spousal support shall be the amount
determined by subparagraph four of this paragraph except that, if the
amount determined by subparagraph four of this paragraph is less than or
equal to zero, the guideline amount of spousal support shall be zero
dollars.

(6) if child support will be paid for children of the marriage but the
payor as defined in this section is the custodial parent pursuant to the
child support standards act, spousal support shall be calculated prior
to child support because the amount of spousal support shall be
subtracted from the payor's income and added to the payee's income as
part of the calculation of the child support obligation.

4. Where the payor's income exceeds the income cap, the court shall
determine the guideline amount of spousal support as follows:

(a) the court shall perform the calculations set forth in subdivision
three of this section for the income of the payor up to and including
the income cap; and

(b) for income exceeding the cap, the amount of additional spousal
support awarded, if any, shall be within the discretion of the court
which shall take into consideration any one or more of the factors set
forth in paragraph (a) of subdivision six of this section; and

(c) the court shall set forth the factors it considered and the
reasons for its decision in writing or on the record. Such decision,
whether in writing or on the record, may not be waived by either party
or counsel.

5. Notwithstanding the provisions of this section, where the guideline
amount of spousal support would reduce the payor's income below the
self-support reserve for a single person, the guideline amount of
spousal support shall be the difference between the payor's income and
the self-support reserve. If the payor's income is below the
self-support reserve, there shall be a rebuttable presumption that no
spousal support is awarded.

6. (a) The court shall order the guideline amount of spousal support
up to the cap in accordance with subdivision three of this section,
unless the court finds that the guideline amount of spousal support is
unjust or inappropriate, which finding shall be based upon consideration
of any one or more of the following factors, and adjusts the guideline
amount of spousal support accordingly based upon consideration of the
following factors:

(1) the age and health of the parties;

(2) the present or future earning capacity of the parties, including a
history of limited participation in the workforce;

(3) the need of one party to incur education or training expenses;

(4) the termination of a child support award during the pendency of
the spousal support award when the calculation of spousal support was
based upon child support being awarded which resulted in a spousal
support award lower than it would have been had child support not been
awarded;

(5) the wasteful dissipation of marital property, including transfers
or encumbrances made in contemplation of a support proceeding without
fair consideration;

(6) the existence and duration of a pre-marital joint household or a
pre-support proceedings separate household;

(7) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;

(8) the availability and cost of medical insurance for the parties;

(9) the care of children or stepchildren, disabled adult children or
stepchildren, elderly parents or in-laws provided during the marriage
that inhibits a party's earning capacity;

(10) the tax consequences to each party;

(11) the standard of living of the parties established during the
marriage;

(12) the reduced or lost earning capacity of the payee as a result of
having forgone or delayed education, training, employment or career
opportunities during the marriage;

(13) the contributions and services of the payee as a spouse, parent,
wage earner and homemaker and to the career or career potential of the
other party;

(14) any other factor which the court shall expressly find to be just
and proper.

(b) Where the court finds that the guideline amount of spousal support
is unjust or inappropriate and the court adjusts the guideline amount of
spousal support pursuant to this subdivision, the court shall set forth,
in a written decision or on the record, the guideline amount of spousal
support, the factors it considered, and the reasons that the court
adjusted the guideline amount of spousal support. Such decision, whether
in writing or on the record, shall not be waived by either party or
counsel.

(c) Where either or both parties are unrepresented, the court shall
not enter a spousal support order unless the court informs the
unrepresented party or parties of the guideline amount of spousal
support.

7. When a party has defaulted and/or the court makes a finding at the
time of trial that it was presented with insufficient evidence to
determine income, the court shall order the spousal support award based
upon the needs of the payee or the standard of living of the parties
prior to commencement of the spousal support proceeding, whichever is
greater. Such order may be retroactively modified upward without a
showing of change in circumstances upon a showing of substantial newly
discovered evidence.

8. In any action or proceeding for modification of an order of spousal
support existing prior to the effective date of the chapter of the laws
of two thousand fifteen which amended this section, brought pursuant to
this article, the spousal support guidelines set forth in this section
shall not constitute a change of circumstances warranting modification
of such spousal support order.

9. In any action or proceeding for modification where spousal support
or maintenance was established in a written agreement providing for
spousal support made pursuant to section four hundred twenty-five of
this article or made pursuant to subdivision three of part B of section
two hundred thirty-six of the domestic relations law entered into prior
to the effective date of the chapter of the laws of two thousand fifteen
which amended this section, brought pursuant to this article, the
spousal support guidelines set forth in this section shall not
constitute a change of circumstances warranting modification of such
spousal support order.

10. The court may modify an order of spousal support upon a showing of
a substantial change in circumstances. Unless so modified, any order for
spousal support issued pursuant to this section shall continue until the
earliest to occur of the following:

(a) a written stipulation or agreement between the parties;

(b) an oral stipulation or agreement between the parties entered into
on the record in open court;

(c) issuance of a judgment of divorce or other order in a matrimonial
proceeding;

(d) the death of either party.