By: Rena C. Dawson, Esq. 

Before filing for divorce or deciding to separate from your spouse, the most commonly asked question is: AWill I have to pay my spouse alimony?@

Alimony is called spousal maintenance or spousal support in New York.  The question of whether one spouse will have to pay the other spouse alimony and how much that award will be will depend on a number of factors.   How much money does each spouse earn and what is the earning capacity of each spouse?  Another factor is whether one spouse was the homemaker and did not work outside of the home or whether one spouse can support him or herself while still contributing to the living expenses of their former spouse.

Spousal maintenance must be requested by the spouse before the court will agree to grant that request. Unlike other states, the primary function of spousal maintenance in New York is to support the spouse until they can achieve independence from the paying spouse. Spousal maintenance awarded after a judgment of divorce is also known as rehabilitative maintenance awarded to allow a spouse to achieve financial independence and a specific dollar amount will be awarded for a specific duration of time.  In the rare case where a spouse cannot become financially independent, the court may award lifetime maintenance, that is a specific dollar amount for the life of the paying spouse.  As child support and spousal support obligations usually terminate upon the death of the paying spouse, the spouse who receives the support should obtain a life insurance policy insuring the life of the paying spouse and paying the recipient of the support upon the death of the paying spouse.

Like child support, there is a set formula to calculate temporary spousal support (support while the divorce action is pending), but there is no post divorce judgment formula. As of October 12, 2010, New York has enacted temporary spousal support guidelines that determine the amount of support based upon a formula using a percentage of each spouse=s income.  The formula provides that temporary maintenance should be the lesser of either: 1) Thirty percent of the higher-earning spouse=s income, minus 20 percent of the lower-earning spouse=s income, or  2) Forty percent of their combined income, minus the lower-earning spouse=s income.

For example, if the payor=s [spouse making more money] annual income is $90,000 and the payees= [spouse making less or no income] annual income is $50,000, the first calculation would be: $27,000 (30 percent of $90,000) minus $10,000 (20 percent of $50,000) equals $17,000 per year; the second calculation would be: $56,000 (40 percent of $140,000 [$90,000 plus $50,000 combined spousal income]) minus $50,000 equals $6,000 per year. In this example, the amount of Aalimony@ or temporary spousal maintenance that the monied spouse would have to pay to the less monied spouse would be $6,000 per year or $500 per month which is the lower of the results from the two calculations.  Fortunately, the rule that the lower result prevails limits the amount of temporary maintenance that a spouse needs to bring the payee=s income up to 40 percent of the parties= total income.  This is a significant redistribution of income between parties and should be reviewed carefully.

Before filing for divorce or separating from your spouse you should consult an attorney to calculate your temporary spousal support obligation based on your income and your spouse=s income.  There is a presumption that the non monied spouse, or unemployed spouse, is entitled to be financially supported by the monied spouse, or working spouse, while the divorce case is pending until there is either a settlement between the parties or a judge makes a final determination.

To determine whether a spouse is qualified to receive financial support from the other, the court will examinethe current and projected finances of each spouse. The court will consider the standard of living of the family during the marriage, the earnings and salary of each party, the assets of each spouse, and the amount each spouse actually needs for living expenses.

Specifically, in awarding spousal maintenance, the judge will consider nineteen specific factors cited in the statute:

1. the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
2. the length of the marriage;
3. the age and health of both parties;
4. the present and future earning capacity of both parties;
5. the need of one party to incur education or training expenses;
6. the existence and duration of a pre-marital joint household or a pre-divorce 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 ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefore;
9. reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
10. the presence of children of the marriage in the respective homes of the parties;
11. the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity;
12. the inability of one party to obtain meaningful employment due to age or absence from the workforce;
13. the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
14. the tax consequences to each party;
15. the equitable distribution of marital property;
16. contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
17. the wasteful dissipation of marital property by either spouse;
18. the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
19. the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
20. any other factor which the court shall expressly find to be just and proper.

Spousal maintenance is not awarded by the court in every divorce or separation case. If spousal maintenance, for example, is waived in a pre-nuptial agreement, the court cannot automatically award maintenance unless that pre-nuptial agreement is vacated or set aside.

The statute sets forth a formula for determining interim assistance while a divorce case is pending and sets forth factors by which a court can deviate from those interim maintenance guidelines.  You should consult a lawyer about the calculation of interim maintenance before signing any agreements.

Rena Dawson, Esq., is the Head the Matrimonial Practice at Isaacs, Devasia, Castro & Wien LLP. For more information on this topic you can contact her at 917.551.1315 or at rdawson@idcwlaw.com

Understanding NY General Municipal Law Section 207-c – Part III

By: Liam L. Castro, Esq.

In Part I of this multi-part series we explained, generally, that New York General Municipal Law Section 207 c provides the payment of full regular salary or wages and for medical treatment to specific groups of law enforcement and municipal employees who are injured or who are taken ill as a result of the performance of their duties.  We also explained that applicants for this benefit must show that there is a direct causal relationship between their job duties and the resulting illness or injury. 

Likewise, Part II explained that if a collective bargaining agreement or the employer’s rules explain a time frame that an employee’s application for NY GEN. MUN. L. ‘ 207 c must be submitted, the employee must comply at the risk of having the application denied.  We also explained that a pre-existing, non-work-related injury does not bar an employee’s application for this benefit as long as the injury he or she shows that the job duties are a direct cause of the current disability.

This Part III explains how you can lose your NY GEN. MUN. L. § 207-c benefits after they have been awarded.  And, there are quite a few of them.

First, we must add that once you have been awarded NY GEN. MUN. L. § 207-c benefits, as the Court of Appeals in Park v. Kapica held that these benefits are considered to be “a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated.”  Your right to keep these benefits is like a civil servant’s right to their job; it can’t be taken away without due process.  

Under the statute, one way you can lose NY GEN. MUN. L. § 207-c salary and medical benefits is when either “health authorities” or a “physician” certifies that you are “recovered and is physically able to perform his regular duties”.  Usually the “health authority” or “physician” is a county or town police surgeon.  

A second way for you to lose your NY GEN. MUN. L. § 207-c salary or medical benefits is if you “refuse to accept medical treatment or hospital care” or “refuse to permit” your employer to inspect your current condition.  In fact, if you refuse to treat on your injury or permit your employer to inspect your condition, the statute states that you will be considered to have waived your right to the benefits.  

A  third way for you to lose your NY GEN. MUN. L. § 207-c salary or medical benefits is if you refuse to return to light duty if such an assignment is available and offered to you.  In fact, if an employee refuses to return to work for light duty and fails to provide medical documentation that he or she is unable to do so, the section 207-c salary benefits may be discontinued without a hearing.  Thus, it is critical for you to provide documentation of your own doctor’s opinion. 

You should note that the statute requires that your light duty be consistent with your “status as a policeman”.  For example, a county correction officer cannot be ordered to work in the jail’s kitchen as a county cook. 

In many collective bargaining agreements, you will find how you can dispute when the employer’s doctor believes that you have recovered and are able to perform your regular duties, or whether you failed to treat your injury or permit the employer to inspect your condition, or whether you refused to return to light duty.  Usually, the forum for these disputes is a hearing before either a hearing examiner or an independent arbitrator, or through an examination by an independent medical examiner.  If your jurisdiction does not have a set negotiated process, the Court of Appeals in Park v. Kapica held that your employer is “free to fashion a hearing remedy so long as its procedure afforded [the employee] due process.”

The fourth way for you to lose your NY GEN. MUN. L. § 207-c benefits is if you are awarded a disability pension.  For example, if you’re awarded a one-third or three-quarters disability pension, your right to section 207-c benefits ends.    

An employer’s decision to cease an employee’s line of duty benefits should always be taken seriously by the employee.  The process can be complicated and requires a timely response, and you should consult an attorney and illicit your union’s assistance immediately.   

Liam L. Castro, Esq. is an Associate in the Labor & Employment division at Isaacs, Devasia, Castro & Wien LLP.  For more information on this topic you can contact him at 917.551.1333 or at lcastro@idcwlaw.com.

Coming soon – Koehler Hall 

When an alumnus like Richard J. Koehler, (BA ’73) gets involved with his alma mater, he doesn’t do it halfway. A former NYPD executive and a busy labor attorney for the past 30 years, Koehler is a John Jay College Foundation Trustee, chaired the College’s first Founding Generation activities in 2012, and received the Alumni Association’s 2010 Distinguished Alumnus Award.

Late last year, he took on more responsibility by becoming chair of a new Alumni Campaign Committee. This 15-member group is organizing several exciting fundraising events to generate new financial resources for the College. Among them will be a golf tournament in the spring of 2014. (Click here to sign up for early bird notifications.)

And yet, this fierce advocate for justice wanted to do even more, so earlier this year, he made a generous leadership pledge as part of the $50 million Campaign for the Future of Justice. His gift will support the Student Opportunity Fund, which provides resources to help cover the costs of unpaid internships and study abroad for students and to meet critical needs so the College can provide a cutting-edge 21st Century education to all its students. It will also support the College’s annual Jack Brennan Holiday Party for 600 children in need – a longstanding partnership with the community.

“Richard is an outstanding servant-leader, and John Jay is fortunate to have him in its family,” said President Jeremy Travis. “No matter how busy he is in his law practice, he is always ready and willing to do more for the College. His generous Campaign gift will play an important role in educating future leaders such as him.”

In recognition of Richard J. Koehler’s unstinting commitment to John Jay, the College will designate Room L.76 in the New Building as Richard Koehler ‘73 Lecture Hall at a ceremony in late September. Fittingly, this is the first classroom to be named for an alumnus. An extended interview with Koehler will be featured in the October, 2013 issue of Justice Matters magazine.

Suspended Rockland jail officer acquitted of cocaine charge

Orangetown – An Orangetown jury on Friday acquitted a suspended Rockland correction officer of possessing cocaine and fleeing a state trooper.

Read Full Article Here

By MARK TOOR | Posted: Monday, June 17, 2013

A five-year-veteran Correction Officer is suing the city in Federal court, saying he was strip-searched by his supervisors in a an effort to find contraband.

“I have never had someone take one of my members into the Warden’s office in front of Captains and tell them to take off his clothes,” Norman Seabrook, head of the Correction Officers Benevolent Association, told the Daily News, which was the first to report on the lawsuit. “It is unacceptable.”

Felt He Couldn’t Refuse

The suit said that the officer, Elio Soto, 35, cooperated with the search because he did not feel he could refuse an order. “Additionally, no Department of Correction policy nor any statement by any supervisor provided Soto with notice that he could refuse any of the searches at issue herein without disciplinary or other legal consequences,” according to the suit.

“If you say no to an order, it’s an automatic suspension,” Mr. Soto told the News. “I can’t lose this job. I have a family to feed.”

Correction Department spokesman Robin Campbell said, “”A search of staff was conducted in January. It was based on reasonable suspicion and sound legal authority and was done in a careful manner that fully respected the rights of all involved.”

Mr. Soto’s troubles began during a random search Jan. 17 at the Anna M. Kross Center on Rikers Island. “Soto was subjected to a canine search although he was not an inmate…and was not suspected of possessing contraband,” according to the suit.

What’s That Ointment?

The two Captains conducting the random search asked Mr. Soto if he was in possession of contraband. Mr. Soto denied it but was asked to empty his pockets, which contained, among other items, a tube of ointment for a skin inflammation. He explained that the tube contained medicine, not contraband.

Mr. Soto was confined to the office of Warden Louie Rivera, who told him that the dog had smelled narcotics on him and asked him to empty his pockets again. When no contraband was found, two canine searches were conducted, both of which indicated that Mr. Soto had an unauthorized substance, the suit said.

“The ‘K-9’ officer commented that the dog was trained to smell the scent of certain batteries and Soto had a small flashlight in his duty belt with those types of batteries,” according to the suit. He removed the flashlight but a third canine search turned up positive.

“At this point, the only thing left in Soto’s pocket was the medication,” the suit said. Capt. Vincent Valerio “then demanded that Soto report whatever contraband he had. Soto stated that he did not have contraband, just the medication.” A half-hour later, Mr. Valerio ordered Mr. Soto to submit to a strip-search, the suit said. Another Captain, Melvin Barnaby, conducted the search, telling Mr. Soto specifically to take off his underwear, according to the suit.

“Barnaby then instructed Soto to squat and cough (doing so is designed to force removal of any contraband in Soto’s rectum),” the suit said. “Soto complied and no contraband was discovered…

This procedure being performed on a Correction Officer was unprecedented at the DOC.”

Officers then searched Mr. Soto’s car before allowing him to leave, according to the suit.

None of the searches “were conducted with any reasonable suspicion that Soto possessed any contraband,” the suit asserts.

Mr. Soto was reassigned without explanation after the incident to a location with video surveillance, the suit said. It said he suffered “severe emotional stress consisting of depression, insomnia, anxiety, irritability and disruptions of both appetite and sleep. He is under treatment of both a medical physician and a licensed clinical social worker for these conditions.”

Contributing to his upset were rumors that he had been arrested and inquiries from co-workers about what had happened, the suit said.

Mr. Soto is represented by Isaacs, Devasia, Castro & Wien LLP.