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225 Eastview Drive Central Islip NY 11722 631-761-7000 www.tourolaw.edu tourolawclinics.wordpress.com www.facebook.comtourolawclinic Rachel Kerremans Clinical Programs Newsletter Contributor Part-time 3L student Rachel Kerremans is serving as the Clinical Programs Writer for her first year. She enjoys interviewing and writing about students experience and the various pro bono projects amongst the Clinic. Rachel was an intern in the Family Law Clinic last semester representing clients in child support arrears and modifications. On September 25 2015 Governor Cuomo signed into law new procedures for resolving maintenance and equitable issues in divorces in Supreme Court. The principal purpose of the law is to deal with maintenance. First Domestic Relations Law 236b5 is amended. That section adopted in 2010 created a formula for temporary maintenance pending a Supreme Court divorce action. Many judges and practitioners found parts of the formula unworkable and a concerted effort by several groups resulted in a new formula which should make more sense to all parties involved in a divorce. The law also creates for the first time a formula for permanent maintenance which had previously been left to the discretion of the court. Hopefully this new law will bring some regularity and predictability to spousal maintenance in divorce proceedings. One other aspect of the new law deserves special attention. It purports to legislatively repeal the definition of marital property created in the landmark case of OBrien v. OBrien 66 N.Y.2d 576 1985. In that seminal case the Court of Appeals declared that enhanced earning capacity created by a license or degree acquired during the marriage is a form of property subject to equitable distribution. For thirty years attorneys representing the propertied spouse have complained that the asset has no value and giving the non-propertied spouse a share is unfair to the spouse who has to pay from other liquid assets. In the new law the following language was added to the factors for distribution DRL 336b5d7 the Court shall not consider as marital property subject to distribution the value of a spouses enhanced earning capacity arising from a license degree celebrity goodwill or career enhancement. However in arriving at an equitable division of marital property the Court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse There are two problems with this section. First the Legislature included this language in the factors for distribution DRL 236b5 rather than in the definition of marital property DRL 236b 1c which would have made more sense. The Legislature further did not state that the license degree etc. was not property only that it was not marital property. The implication is that it is separate property but the language is not clear. Finally because the new definition allows the direct or indirect contributions to be considered the value asset will still have to be valued. In a divorce even separate property sometimes must be valued because the court has the power to consider the value of separate assets retained by each spouse. Here it seems that the license or degree must still have some financial worth and in many divorces a value will still be placed on it. Itissubmittedthatthenewlawintendedtoredefine andlimitthebroaddefinitionofpropertycreated byOBriendoesnosuchthingandwillonlyinvite additionallitigationtodetermineitsexactscope. NYS Legislature Changes Divorce Laws Creates Problems with New Definitions Commentary by Professor Lewis A. Silverman Director Family Law Clinic Vanessa Cavallaro Clinical Programs Newsletter Media Editor Full-time student Vanessa Cavallaro is serving as the Clinical Programs Media Editor for a second year highlighting the experiences of students and the successes they achieve for their clients. Vanessa was a Public Interest Fellow in the Elder Law Clinic and is now an intern in the Veterans and Servicemembers Rights Clinic.