Family Law


DRL 110 was amended, effective 9/17/10, "to permit two adult unmarried intimate partners to adopt a child together" and replaces current references to "husband and wife" with "married couple."

Automatic Orders

DRL 236(B)(2)(b)(2) was amended, effective 3/30/10, and deemed retroactive to 9/1/09, to clarify that with regard to pension payments, a party in pay status may continue to receive those payments.

Child Support Modification

FCA 451 and DLR 236(B)(9)(b) were amended effective 10/13/10 to provide that "the court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of substantial change in circumstances."

Absent a written opt-out, the court may modify an order of child support where (a) "three years have passed since the order was entered, last modified or adjusted" or (b) "there has been a change in either party's gross income by 15 percent or more since the order was entered, last modified or adjusted."

The amendments apply to modifications of child support orders entered on or after the effective date; as to incorporated agreements, the amendments shall only apply if the incorporated agreement or stipulation was executed on or after the amendment's effective date.

Counsel Fees

DRL 237 and 238 were amended, effective 10/12/10, to provide, among other things, that "there shall be a rebuttable presumption that counsel fees shall be awarded to the less monied "spouse" and the court is supposed to assure that fees are "awarded on a timely basis, pendente lite."

The statute contains requirements for affidavits and applications for counsel fees and further provides that payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards or fees and expenses to an applicant which would otherwise be allowed under the statute.

Divorce - "No-Fault"

DRL 170 was amended, effective 10/12/10, to provide for a divorce where "the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath." However, "no judgment of divorce shall be granted" unless and until all of the ancillary issues are resolved.

Maintenance - Temporary Guidelines & Permanent Study

DRL 236(B)(5-A) has been added, effective 10/12/10, and applicable to actions commenced on or after the effective date, to impose numeric formulas for temporary maintenance applicable to the first $500,000.00 of the payor's annual income. The court is permitted to vary from the presumption award of temporary maintenance upon a finding that the presumptive award is unjust and inappropriate upon the consideration of a number of statutory factors. Parties are permitted to opt out of the temporary maintenance standards.

DRL 236(B)(6) is amended by, among other things, the expansion of the existing 12 maintenance factors, to 20. Finally, the amended statute requires the Law Revision Commission to review and assess the economic consequences of divorce on the parties and to review the maintenance laws of the state.

Orders of Protection

Various provisions of the FCA and DRL were amended, effective 8/13/10, (to apply all orders of protection pending or entered on or after such effective date) to provide that a court "shall not deny an order of protection, or dismiss an application for such an order, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the application or the conclusion of the action. The duration of any temporary order shall not by itself be a factor in determining the length of any final order".

FCA 842 was amended, effective 8/13/10, to provide for certain extensions of orders of protection.