Chapter 14 AGREEMENTS TO PAY SPOUSAL MAINTENANCE AFTER REMARRIAGE AND DEATH
Jurisdiction | New York |
Chapter Fourteen
Agreements to Pay Spousal Maintenance After Remarriage and Death
I. Spousal Maintenance—Determining Appropriate Type, Amount, and Duration of Maintenance
The purpose of spousal maintenance has been explained variably: (1) to provide financial support for the recipient spouse while he or she gains the skills and employment necessary to become self-sufficient;2771 and (2) to give the spouse economic independence.2772 It should continue only as long as is required to render the recipient self-supporting.2773 A court must consider property awards and their income-generating capacity prior to making a spousal maintenance award.2774 Unless otherwise stipulated, spousal maintenance is taxable to the recipient spouse and deductible to the payor.
Spousal maintenance generally falls into one of the following categories:
1. Permanent, or nondurational maintenance, payable until the recipient spouse's valid or invalid remarriage, death, death of the payor, or proof of a regular course of cohabitation pursuant to N.Y. Domestic Relations Law § 248 (DRL). The standards for termination of spousal maintenance can be heightened or reduced by the parties;
2. Rehabilitative maintenance, which is durational until a stated time or completion of specified vocational or educational course of training; or
3. Lump sum payment of a sufficiently substantial amount, which if properly invested and managed, will cover the dependent spouse's reasonably foreseeable financial needs, is employed by very wealthy spouses who are willing to accept the adverse tax consequences and who may desire a speedy marital dissolution; this method is used very infrequently. The inherent risk of a lump sum settlement is significant: if the recipient spouse dissipates the funds and is in danger of becoming a public charge, the support obligation of the affluent spouse becomes reactivated.
Parties are free to negotiate any appropriate maintenance agreement.2775 Consideration during negotiations should be given to the standards of modification of contractual spousal maintenance.2776
Parties may, if they wish, establish their own evidentiary standards for modification and are not locked into the statutory scheme; their standards may be more relaxed or more severe,2777 just as they may be with child support (provided it does not negatively impact the child).2778
II. The 2015 Maintenance Act
On August 13, 2010, Governor David Paterson signed three major bills into law. The first created a true no-fault divorce law by adding subsection (7) to DRL § 170,2779 making New York the last of the 50 states to have such a law. The governor also signed into law amendments to DRL §§ 237 and 238, regarding the rebuttable presumption that counsel fees shall be awarded to the less monied spouse.
The statutory changes regarding temporary maintenance took effect after October 25, 2015. The provisions with respect to post-divorce maintenance took effect on actions or proceedings commenced after January 23, 2016.
III. Clauses And Conditions
A. Cohabitation Clauses
Marital agreements frequently include a dum casta clause, brief for dum sola et casta (while she remains single and chaste).2780 Such a clause, in typical fashion, provides that spousal maintenance continues until (typically) the wife "cohabits" with a male for an identified period of time. Few agreements define or rule out the triggering mechanisms of the clause.
B. Parties May Condition the Termination of Support Upon Any Event
In Scharnweber v. Scharnweber,2781 the Court of Appeals held that
parties may, in a separation agreement, condition a husband's obligation to support his wife solely on her refraining from living with another man without the necessity for the husband to also prove that she habitually holds herself out as the other man's wife as Domestic Relations Law § 248 2782 requires. . . . If the wife has voluntarily entered into the agreement then the court may not refuse to enforce it absent some overriding public policy reason, not presented here, or alter its provisions without the consent of the parties. 2783
In Mastrocovo v. Capizzi,2784 the Fourth Department terminated the defendant's spousal maintenance obligation based only on the plaintiff's cohabitation with another man. The settlement agreement required the defendant to pay maintenance for four-and-a-half years or until "the continued cohabitation of the wife, as defined in DRL § 248." The plaintiff indisputably lived with her boyfriend approximately one year before the defendant's motion. Since parties may condition spousal maintenance solely on the recipient spouse's refraining from living with another man without requiring "holding out as the other's wife," the defendant did not need to further establish that she had held herself out as the other man's wife. Reference to DRL § 248 was solely to define cohabitation and, "under the standard canon of contract construction expressio unius est exclusio alterius, that is, that the expression of one thing implies the exclusion of the other," the fact that the agreement referred only to the cohabitation prong of § 248 compels the conclusion that the parties did not intend to include the second prong of the plaintiff holding herself out as another man's wife.
The law is clear that DRL § 248 applies only to judgments and is inapplicable to situations arising from separation agreements.2785
The definition of "cohabitation," and its cognate, "living together," have been challenged. In Salas v. Salas,2786 both the majority and the dissenting opinions weighed in regarding the inexplicit meaning of the phrase "living together." The majority said that the phrase "defies precise definition." The dissenter said:
"Living together," though a common expression in the lexicon of both the lawyer and layperson, resists precise definition. Various courts and scholars have grappled with this elusive phrase with mixed results. Although no exact definition emerges from these treatments, certain recurring factors become apparent, and a rough composite emerges from a review of New York case law and that of other jurisdictions. 2787
None of the leading cases has held that cohabitants must literally spend each day of the relevant period in each other's physical presence. The burden of proof rests upon the payor spouse to show by a preponderance of the evidence that there has been a triggering event that has terminated his or her obligation to continue making spousal support payments.2788
C. Undefined Generic Term "Cohabitation"; No "Financial Unity" Required
Since this question arises from a contract, and marital agreements are construed under the principles of ordinary contract law,2789 the terms set forth therein must be specifically interpreted so that where the contract provides that spousal maintenance payments "shall continue until the death or remarriage of the plaintiff, or [a date certain],"2790 or where the agreement does not include any provisions for the termination or downward modification of support in the event that the wife lives with another man and/or holds herself out as his wife, courts are without authority to read such a terminating condition into the agreement.2791 Accordingly, as held by the Court of Appeals in Scharnweber v. Scharnweber, parties are free to create their own conditions: "[P]arties may, in a separation agreement, condition a husband's obligation to support his wife solely on her refraining from living with another man."2792
Pursuant to the stipulation of settlement, in Ciardullo v. Ciardullo2793 spousal support terminated upon the respondent's remarriage, defined as, inter alia, "habitually living with a man" or "establishing a residence with a man." The Second Department tersely ruled that "[a]ccording to the unrebutted testimony, the respondent's boyfriend maintained a separate residence in the one-bedroom apartment he rented from the respondent and the two did not share household expenses or function as an economic unit."
In Famoso v. Famoso,2794 the parties agreed that the defendant would pay the plaintiff maintenance for eight years following the sale of the marital residence and that the maintenance payments would end in the event of the plaintiff's remarriage. Remarriage was defined to include "the wife's residing with an unrelated adult male . . . for a period of 120 days in any one (1) year." Residing was defined as "staying overnight." The defendant attempted to prove cohabitation in two ways, both of which failed. His observations of the plaintiff's home over a four-month period, surveillance of the plaintiff's residence by a private investigator, and information obtained under various pretenses by the private investigator did not establish that the plaintiff's male friend stayed overnight on the requisite number of occasions. Furthermore, the plaintiff's male friend maintained a separate residence. It was under those circumstances that separate residence was relevant.
The line of cases infusing economic unity or a financial relationship into the meaning of "cohabitation" involved situations where the parties used the term "cohabitation" generically.2795 In none of the cases did the contracting spouses condition "cohabitation" upon the occurrence of any specific event—construction of the term was thus left to the judiciary.
The settlement agreement in Clark v. Clark2796 provided that the defendant's obligation to pay maintenance was to terminate upon "cohabitation of the wife with an unrelated male." Less than a year after the divorce, the defendant moved to terminate his maintenance obligation on the ground that the plaintiff, along with their three children, were living in a "commune" with another family. The defendant contended that the changes made to the agreement at the time it was executed reflected the parties' intent that the plaintiff's maintenance would terminate in the event she lived in a "commune situation" or with another...
To continue reading
Request your trial