The New Rights of Non-biological Parents

The struggle against discrimination for same sex families and individuals has been a long road. However, changes have been occurring at a quicker pace since 2015 when the U.S. Supreme Court ruled that same-sex marriage is constitutionally legal across the entire United States in Obergefell v. Hodges.

For the last twenty-five years, under a case, entitled Allison D., a parent was only recognized by biology or adoption. Many children suffered and were cut off by a person they called “mommy” and who raised them from birth because that parent did not go through an expensive and time-consuming adoption or did not give physical birth to them.  On August 30th, 2016 the highest court in New York, the Court of Appeals remedied the injury.

In The Matter of Brooke S.B. v. Elizabeth A. C.C, the Court of Appeals in an opinion written by Hon. Abdus-Salaam ruled, “that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law §70.”

Brooke and Elizabeth met and started a relationship in 2006. The following year they moved in together in upstate New York. Brooke gave Elizabeth an engagement ring. It was a symbolic gesture since same sex marriage was not legally recognized at the time. The parties started a family immediately. Elizabeth became pregnant via an anonymous donor in 2008. Brooke was present when their son was born and even cut the umbilical cord. Brooke’s last name was placed on his birth certificate, birth announcements and baptism certificate. Brooke engaged in caretaking and custodial responsibilities including feeding and bathing.

When Brooke and Elizabeth decided to terminate their relationship in 2010, Brooke continued to parent. She had regular and consistent parenting time with her son and he spent major holidays with Brooke and her family. Brooke continued to bring him to medical appointments, his school, and supported him financially. Three years later, Elizabeth ceased contact between Brooke and their son. The Court of Appeals ruled that Brooke had standing to seek custody and visitation. The Court recognized the varied modern families of today and that the old case law was unworkable. It cited numerous social science studies about the damage to children by being cut off from a primary caretaker, also known, as a parent to the child.

Once the criteria according to Brooke S.B., are met there is no limit. Thus, a parent who was previously denied standing for custody and visitation should be able to seek standing now after Brooke S.B. As Judge Piggot of the Court of Appeals pointed out, the previous improper deprivation of a right is a change in circumstances. The change in case law may also be seen as a change in circumstances. Retroactivity is generally applied by the Court of Appeals and lower courts when there is a new interpretation of previously existing law. New York courts broadly construe a new interpretation of an existing rule. The Courts have broad discretion to apply a decision retroactively. There is a trend in New York courts to apply decisions retroactively. In addition, res judicata usually does not apply in custody and visitation cases. Parenting decisions and plans are modifiable in accordance with the best interests of the child.

The Court of Appeals left open for the future, expansion of the definition of parent and recognition of non-biological and non-adoptive families where there is not a pre-conception agreement. Future cases or legislation may provide for a functional definition of a parent based on de facto and psychological factors for post-birth partners.

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The Grey Divorce

By: Sherri Donovan

I recently represented “Francine” who wanted a divorce at the age of 91. When I asked why; Francine asserted that the men are cuter in Florida!

Divorce for couples over the age of fifty have been increasing for the past two decades, especially among those couples that are college-educated. The rate of divorce amongst these couples over the age of 50 has risen from one in ten in 1990 to nearly one in four today. Moreover, divorce rates for couples that are age 65 and older have more than doubled in this same period of time. This increase in the rates of the grey divorce can be found for both couples in which a spouse has been previously married and divorced, and for single-marriage couples.

One cause of the increase in divorce for elderly couples over the past two decades include increased education. A better-educated couple has more economic opportunities and increased financial stability, resulting in less stress over their financial future. However, an increase in education has the opposite effect for elderly couples. Economic opportunities due to being better educated generally result in having the financial resources available to be economically independent each other. Thus, it is easier for a spouse to decide to divorce should one not want to remain with the other spouse.

Another factor behind the increased divorce rate for older couples is the changing role of marriage in this society. Marriage was previously seen as a partnership rather than an emotional and economic bond, with each spouse having a role in the relationship (e.g. whether it was keeping the home, being the “breadwinner”, or raising the children.) The current view is of greater expectations within the marriage, particularly of emotional and physical fulfillment. A married couple is expected to be happy with their relationship. Divorce is the primary option should that happiness not exist. Other factors behind the increasing grey divorce rates are the reduced social stigma of divorce, longer lifespans, and introduction of “no-fault” divorce.

The consequences of divorce are unique for an elderly couple.Younger couples have time to recover financially and emotionally from a divorce. However, an older divorced person does not have as much time to reenter the workforce, rebuild their savings, find a new partner, or to engage in proper long-term planning. Thus, older divorcees tend to have only a fifth of the wealth of an older married couples or even older widowers. Older divorced persons can also rely on fewer public benefits, e.g. social security, than other married persons or widowers, making it difficult financially. It is important that an elderly person seeking a divorce, have a team of professionals. A matrimonial lawyer or mediator may need to work closely with an elder care lawyer, a health care manager, and/or a financial advisor. When assets are transferred, the cost of health aides, obtaining government benefits, types of residences available, and distribution of retirement and insurance funds are critical issues in a grey divorce.

An elderly couple contemplating divorce needs to seek advice about spousal support, property division, long-term care, and the role of adult children. Usually a grey divorce involves a long-term marriage. In long-term marriages, spousal support, also called maintenance of alimony, can be awarded if one spouse has more income than the other. Income will include retirement funds that are distributed and received on a regular basis. Social Security income available will be taken into account when considering the differences of income between the spouses. For marriages over twenty years, the New York Domestic Relations Law (Section 236) recommends maintenance (spousal support/alimony) for 30% – 50% of the length of the marriage. However, lifetime maintenance can still be awarded if there is a severe medical or financial need, and resources available.

Adult children may have anxiety and a negative reaction to their divorcing parents which could increase the stress level of the separating elderly couple. Adult children may be worried about who will take care of each parent and feel the burden of creating two households out of one for their parents. Adult children who received financial assistance from their parents, may not be able to depend on the availability of those funds after a divorce. Adult children may also be concerned that a new romantic partner will utilize or be the beneficiary of the family’s assets instead of themselves and grandchildren. Sometimes adult children take the side or come to the rescue of one parent over the other. The grey divorce can trigger psychological family dynamics. A mental health professional may be needed. Seniors divorcing may need and desire to continue to grandparent together. Terms should be negotiated for future grandparenting and attending family functions. In New York State the visitation laws protect grandparents.

Once divorced, many spouses consider finding a new partner or spouse. A pre-nuptial agreement may be strongly advisable to protect funds to provide for long term care and the family’s inheritance. Lastly, a guardian may be needed to make decisions for an elderly divorcing person who suffers from Alzheimer’s or Dementia and is incapable of day to day and/or long term, responsible judgements. With that said it is important that the grey divorce be completed in a matter that provides for the most fulfillment and happiness to each senior involved. It is also important for a senior citizen to update one’s will, power of attorney, and health care declaration at the start of a divorce proceeding. During the process of the division of assets in the grey divorce, one will still be considered married. Thus, the spouse one is divorcing can be entitled to make critical medical and financial decisions if it is not legally stated otherwise. There is precedential case law that if one dies before a judgement of divorce is granted and/or a separation or divorce agreement is signed and notarized, one’s spouse could obtain all of the wealth in the marriage, even if that was not the intention.

Elder abuse by a spouse or intimate partner may be psychological, physical, emotional, economic, and/or sexual. It can occur over a long period of time due to the victim, mostly older women, being afraid to leave, a deterioration of mental and physical abilities, economic dependance, fear of institutionalization, shame, guilt, values, culture and a lack of information about alternatives. Late onset domestic violence can also occur in senior intimate relationships due to worsening illness, the perpetrator’s frustration of being burdened and frustrated with increased responsibilities, retirement, and sexual change. Signs of elder abuse in a victim include frequency and severity of injuries, attempted suicide, delay of medical assistance, missed appointments, and intensification of depression, fear and trauma. A perpetrator may minimize or deny the complaints and injuries, blame and criticize his partner, threaten harm, engage in isolation of the victim, utilize alcohol or drugs and/or attempt suicide.

Elder abuse is a crime. A spouse or intimate partner is entitled to an order of protection and police protection. Emergency shelter and support groups are available. Resources include the National Domestic Violence Hotline at 1-800-799-SAFE; Eldercare Locator at 1-800-677-1116;; National Center on Elder Abuse at 202-898-2586.

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Non-biological & Intended Parent Protection: The Child-Parent Security Act

Non-biological Parent Protection
Currently, if a non-biological parent has not adopted a child, that parent may lose all rights of access to the child even if that parent has raised the child since birth. There are many tragedies where children who have had for years the benefit and attachment of two parents, upon dissolution of the relationship between the parents lose all contact and communication with the non-biological parent. Even when the non-biological parent wishes to continue parenting their children, the courts have dismissed their petitions.

For example, Mary and Marina agreed to utilize artificial insemination to have a child. Both women raised the children together in one household. Both adults engaged in parenting tasks and formed emotional bonds with the child. Mary gave birth to the child, and Maria paid for the medical procedures. The child called both women “Mommy.” When Maria and Mary separated, Mary prohibited Maria from seeing their daughter. Maria filed in court for custody and visitation. The Family Court in Rockland County dismissed the petition for lack of standing.

The proposed Child-Parent Security Act, pending in the New York State legislature, would statutorily remedy this unnecessary and potentially devastating loss of a parent to a child. Part 6 of the bill permits an intimate partner of a biological or adoptive parent, who has resided in the same household as the child, performed significant parental tasks and formed a parent-child bond, to obtain a judgment of parentage post-birth of the child. The proposed law specifically excludes grandparents and compensated caregivers. The biological or adoptive parent must have consented to the formation of the parent-child relationship in some written form, including but not limited to a birth announcement, school or medical records, a religious document, signed letter, or an executed contract.

Intended Parent Protection
Currently, surrogacy contracts are illegal in New York State. Many infertile and same-sex couples travel or make arrangements out-of-state and abroad to have a child with a gestational carrier. The proposed Child-Parent Security Act repeals the ban on surrogacy contracts, permits gestational agreements for compensation, and legitimizes intended parents. An Order of Parentage may be obtained by a court prior to birth. The gestational carrier must have independent legal counsel, be over the age of twenty-one (21), and has the right to make her own health care decisions. The law prohibits specific performance. Thus one cannot be forced to become impregnated. The law only applies where the gestational carrier does not provide any eggs or genetic material.

As it is currently worded, the legislation does not require the gestational carrier to obtain psychological counseling before entering into a gestational agreement or to have her own children already. I would ask the proponents of the bill to consider such a provision, and possibly raise the required age of the gestational carrier to lessen the chance of psychological and emotional damage to a young woman surrogate. The intended parents are required to financially support and assume all parental responsibilities of all children that are born.

There is currently no statute protecting unmarried couples and single women as parents who conceive through artificial insemination. There is also no law addressing the recognition of parents of children conceived through egg or embryo donation. The Child-Parent Security Act addresses the legal status of children and recognition of parents conceived through sperm, egg, and embryo donation. The proposed legislation provides an education in the understanding of the scientific terms of assisted reproduction technology. The comprehensive bill contains three pages of definitions including but not limited to gamete, embryo, embryo transfer, collaborative reproduction, donor, assisted reproduction, gamete provider, gestational carrier arrangement, and in-vitro fertilization.

The legislative intent of the Child-Parent Security Act is a recognition that family law and the definition of a parent need to reflect how many different types of families exist and are formed. It is essential that family law catch up with the science and technology of assisted reproduction to lessen the confusion, and provide consistency and legitimacy to children’s family units.

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Social Media Clauses in Pre-Nups, Custody Agreements, and Orders of Protection

Social media clauses can be incorporated into prenuptial and post-nuptial agreements, child custody agreements and orders of protection from domestic violence. Damaging internet posts on social media sites can be legally prohibited. It is important to protect one’s reputation online in an era where employers, business associates, government agencies, academic institutions, friends, and future intimate partners are checking and tracing digital footprints.

Social media clauses in prenuptial and post-nuptial agreements
Social media clauses can prevent former spouses from posting items online that would disparage, harm, negatively affect the other former spouse’s image, or have any negative effect on a former spouse’s business, school, or career prospects. In these agreements, each spouse agrees that derogatory online posts will not be disseminated without prior written and/or electronic consent. Information that spouses agree not to share online is called “Protected Information.” Types of Protected Information include, but are not limited to, the other spouse’s personal and business activities, legal and financial affairs, physical health, and sexual activities. Such a clause can also prohibit the electronic dissemination of photographs, videos, emails or texts about or from the other former spouse.

An example of a social media clause in a prenuptial agreement is as follows:

All information that may in any way disparage, harm, cause to lower the other’s self-esteem, negatively affect the other’s public image, or have any negative effect on the other person’s business, school, or career prospects will be deemed Private and Confidential Information (HEREIN AFTER “PROTECTED INFORMATION”) that will not be disseminated without prior written and/or electronic consent. In each instance, the parties will not: (a) disclose, directly or indirectly, or cause or induce the disclosure of, any information, pictures, posts, comments; (b) remove, reproduce, summarize, copy, excerpt, distribute, sell, exploit or utilize in any manner whatsoever any PROTECTED INFORMATION that has been provided to them by the other party.

PROTECTED INFORMATION shall include, but not be limited to, information concerning the other party’s personal and business activities; legal and financial affairs; physical health; sexual activities; philosophical, spiritual, or other views; characteristics; whereabouts; any and all photographs, likenesses, tapes, films, videos, or audio and other recordings (including negatives, prints, or copies thereof) of or by the other party; and any emails, texts, or other forms of written communication about or from the other party.

Under no circumstances will the parties divulge any PROTECTED INFORMATION by any means or through any media whatsoever, including, but not limited to, through photographs, video, blogging, texting, “Tweeting”, “tagging”, or posting any such PROTECTED INFORMATION on any social media site, service, or platform, including but not limited to Facebook, Instagram, Twitter, LinkedIn. All PROTECTED INFORMATION shall remain the other party’s sole and exclusive property.

Social media clauses in custody agreements
The posting of children’s photos, videos with the children on YouTube, and/or even live videochatting/videotaping of children during access time with one parent has become a concern of parents in custody disputes as well as the courts and attorneys for children. A parent may want to share live videos and photos of a child with distant friends and family. However, when there is a lack of trust between the parents, a lack of knowledge over who new acquaintances are, as well as an increased use of social media for dating and socializing during a divorce, social media clauses in a custody agreement or court order may be appropriate. It may be appropriate simply because many pedophiles collect photos and information about children through the internet. The social media clauses concerning the protection of children can be directed at one parent or neutrally applied to both parents in the best interests of the child.

An example of a social media clause in a custody agreement is the following:

The parents agree not to use any social media involving the child during parenting time. The parent will not post pictures of the child on any social media sites without the other parent’s approval and access to the postings. These sites include, but are not limited to, Facebook, WhatsApp, and Snapchat.

A parent’s violation of the above conditions shall permit the other parent to immediately file to limit access and request supervised access with the child. A parent’s violation of said agreement’s social media clause shall serve as a change of circumstances for the parent returning to court for a modification.

Social media clauses in Orders of Protection
As discussed in my previous blog on Divorce in the Digital Age, cyber-attacks are not just against corporations and countries. One may be a victim of cyber abuse from a spouse or intimate partner. One in four stalking victims have been cyber-stalked. Cyber abuse includes, but is not limited to threats, name-calling, and derogatory remarks in text messages, e-mails, and postings on social media sites. Incessant digital/electronic communication, including numerous hang-up calls, or persistent voicemails and text messages can be considered harassment by a family or criminal court. Computer hacking permits one to gain access to private computer files. Spyware allows one to take snapshots of another’s computer through remote access. Creating false profiles and posts, changing passwords to delete critical e-mails, sending fraudulent e-mails, interception of e-mails, distributing photos, videos, personal information, and damaging one’s public image, or employment through the internet occur in vindictive matrimonial matters. There are a number of social networking sites, including “Formspring”, “Intellius”, and “MySocial 24×7” that are used for GPS and camera surveillance. It is essential not only to improve cyber security, but also to seek orders of protection against a perpetrator of cyber abuse.

When social media is used as a weapon, an Order of Protection can now contain language ordering one party to cease any type of communication with another party through social media. Specifically, an Order of Protection may order one party to refrain from communication or other contact by mail, telephone, email, voicemail, or other electronic means with the other party, including communication through social media.

In conclusion, social media clauses can also contain monetary penalties. Currently, when one commences an action for divorce in New York State, there are courts orders in place to prohibit the transfer of assets and destruction of computer files; perhaps the automatic orders should also contain a social media clause against disparagement of the other spouse and a children’s bill of rights.

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The Before and Aftermath of the Supreme Court’s 2015 Same Sex Marriage Decision

By Sherri Donovan, Esq.

On June 26, 2015, the Supreme Court of the United States decided the matter of Obergefell v. Hodges. The petitioner, James Obergefell, sued the Director of the Ohio Department of Health after he was denied the right to be listed on his partner’s death certificate as the surviving spouse. This matter was combined, by the U.S. Court of Appeals for the Sixth Circuit, with several other lawsuits by same-sex partners against the respective authorities in Michigan, Kentucky, and Tennessee. Their argument was that the officials in these states violated the 14th Amendment of the U.S. Constitution by denying them the right to marry or to have marriages lawfully performed in another state given full recognition.

The Supreme Court held, in a 5-4 decision by Justice Anthony Kennedy, that the 14th Amendment to the U.S. Constitution required a state to license a marriage between two people of the same-sex, and to recognize a marriage between two people of the same-sex when their marriage was lawfully performed and licensed in another state. The Court also held that, under the 14th Amendment, there was no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character.

The Supreme Court based its decision on America’s history and experience with the institution of marriage, in addition to the Court’s own jurisprudence as it pertained to marriage and intimate relationships. The Supreme Court also based its decision on the principle that marriage is a fundamental, individual right protected by the 14th Amendment’s Equal Protection clause, and that the Court’s action, rather than legislative processes, was urgently needed to prevent further pain and humiliation of the affected couples.

The implications of this ruling are far-reaching. The Obergefell decision now makes it possible for a same-sex couple to be married in any state in America, and to be recognized as a married couple should they move to another state in this country. This decision erases some uncertainty about the rights of a same-sex married couple that remained in the wake of the June 26th, 2013 Supreme Court case, United States v. Windsor. The Windsor case struck down Section 3 of the Defense Of Marriage Act (DOMA) and held that same sex couples are eligible for federal benefits – without reaching the question of whether same-sex couples had a constitutional right to marry nationwide. The Windsor decision was significant in providing rights and privileges for same-sex married couples, in areas such as real estate, tax, estates, health, immigration, social security and retirement benefits.

Massachusetts was the first state to permit same-sex marriage in 2003. In the year 2014, marriage equality gained tremendous momentum, starting with 16 states and the District of Columbia legalizing same-sex marriage. By the end of 2014, 35 states and the District of Columbia permitted same-sex marriage. On January 6, 2015, Florida was added to the list of states permitting same-sex marriage. In November of 2014, the Sixth Circuit upheld same-sex marriage bans in Michigan, Ohio, Kentucky, and Tennessee. The Sixth Circuit Court decision directly conflicted with decisions from the Fourth, Seventh, Ninth, and Tenth Circuits. These circuits ruled that bans on same-sex marriage were unconstitutional after Windsor.

A key issue that has arisen in the wake of the Obergefell decision is the enforcement of religious freedom restoration acts and their effects on the rights of same-sex married couples in states that have such legislation. Some states have passed or amended this type of legislation before and after the Obergefell decision. The language that is often found in this type of legislation, according to Stephanie Francis Ward of the ABA Journal in a September 2015 article entitled “After Obergefell”, exempts businesses from providing services to same-sex married couples based on the owner’s religious beliefs, potentially making it legal for service providers to not provide services to same-sex married couples and for employers to deny to same-sex married couples the employment benefits to which heterosexual couples are entitled. This issue is made even more complex since 28 states do not prohibit sexual orientation discrimination, 31 states do not prohibit gender-identity discrimination, and federal law does not consider the LGBTQ community a protected class in the private sphere.

Federally, two legislative items have been proposed to address this problem. One is the Employment Non-Discrimination Act, which seeks to stop workplace discrimination against LGBTQ individuals by employers that employ at least 15 people. The problem with this piece of legislation (which was first introduced in 1994), however, is its broad religious exemption. The other proposed legislation is the Equality Act, introduced this July, which seeks to stop sexual orientation and gender-identity discrimination in employment, education, housing, and public accommodations.

The approach at the state level has varied, either with compromise legislation such as that in Utah (which passed legislation prohibiting housing and employment discrimination based on sexual orientation and gender identity without dealing with public accommodations and leaving religious exemptions on the books), or with more one-sided legislation such as that found in Arkansas, Indiana, and Mississippi that provided protections and exemptions for businesses and other organization based on religious beliefs. Such one-sided legislation was sometimes found to be so broad that business might be allowed to avoid following local anti-discrimination ordinances. This, particularly in the case of Indiana, led to situations in which businesses and conventions threatened to pull their operations out of the state unless changes were made to the more one-sided religious freedom restoration acts.

The protection of the relationship between children and their LGBTQ parents, especially when the parents are unmarried or otherwise not biologically related to the child, needs to be addressed by further legislative and judicial action. In New York, currently, there are no sufficient legal protections for children and non-biological parents. Current New York law prohibits a regulated process for reproduction through assisted pregnancy, and children conceived through surrogacy have a very insecure legal relationship with their intended parents. Second parent adoption, one conceivable solution for this situation, is overly burdensome for families, and in some cases may not be a viable option. A legislative effort to address this problem exists in the New York State Legislature through a bill entitled “The Child-Parent Security Act.” This bill is proposed to address the issue of a child’s parentage and regulate the processes of assisted pregnancy.

Transgender individuals, children, and parents face enormous hurdles and continue to be victims of discrimination and bullying. A transgender male was refused a divorce in Arizona. For transgender youth, parental consent and many times court approval is needed before medical treatment can begin or continue for transitioning gender. Legal protections for the transgender population are essential. Some States, including New York, have legislation pending to prohibit conversion therapy (attempts to force heterosexuality upon gay and lesbian minors). Finally, a greater sensitivity and emphasis is needed to enforce and provide laws against domestic violence in LGBTQ relationships.

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2015 Legislative Changes in Matrimonial and Family Law in New York State

By Sherri Donovan, Esq.

A permanent maintenance formula will come into effect in New York this year for the first time. On June 24, 2015, the New York State Senate passed a bill that will bring a number of revisions to the Domestic Relations Laws regarding the spousal support. The New York State Assembly passed this same bill on June 15, 2015, the previous week. It is widely expected that Governor Cuomo will sign this bill, which has support from several prominent legal organizations such as the New York State Bar Association and the Women’s Bar Association of the State of New York into law before the end of the year.

One change is that the current temporary maintenance law and formula, in effect since 2010, will be replaced with a new temporary maintenance formula. Now, there will be two different computational maintenance formulas. One formula is that in which child support will be paid and in which the temporary or post-divorce maintenance payor is also the non-custodial parent for child support purposes. The other formula is that in which child support will not be paid, or where it will be paid but the temporary or post-divorce maintenance payor is the custodial parent for child support purposes.

Notably, the numeric maintenance formulas will now be brought to post-divorce maintenance calculations. For instance, the changes to the maintenance formulas provide specifically for interaction between maintenance formulas and child support computations. In particular, when child support is to be paid in addition to temporary and/or post-divorce maintenance, under the new law, 25% of the maintenance payee’s income will be subtracted from 20% of the maintenance payor’s income. Then, the total of the maintenance payor’s income and the maintenance payee’s income will be multiplied by 40%, and the maintenance payee’s income will be subtracted from the result. In the alternative, when there is no child support awarded, or when the maintenance payor is the custodial parent for purposes of child support, 20% of the maintenance payee’s income will be subtracted from 30% of the maintenance payor’s income. Then, the total of the maintenance payor’s income and the maintenance payee’s income will be multiplied by 40%, and the maintenance payee’s income will be subtracted from the result. The lower sum of these two formula calculations will be the guideline amount of maintenance.

The new permanent maintenance legislation provides for an advisory schedule for the duration of the maintenance award. The durational periods now have ranges to afford courts discretion. The advisory durational periods are (a) marriages of 0-15 years’ duration (maintenance payable for 15%-30% of the length of the marriage), (b) marriages of 15-20 years’ duration (maintenance payable for 30%-40% of the length of the marriage), and (c) marriages of over 20 years’ duration (maintenance payable for 35%-50% of the length of the marriage). However, a court can still award non-durational, lifetime maintenance in an appropriate case. In order to determine the duration of maintenance, a court is required to consider anticipated retirement assets, and retirement eligibility age.

The income cap for temporary maintenance awards has been lowered from $543,000 to $175,000 of the payor’s income. The new cap of $175,000 also applies to post-divorce maintenance awards. Income is explicitly defined as income under the Child Support Standards Act and under DRL § 240. The new law preserves a judge’s rights to deviate from the guidelines when the amount of maintenance would be unjust or inappropriate. The new law also provides the court with discretion to allocate the responsibility for payment of specific family expenses between the parties in such percentage as the court deems equitable. A court must list the factors that it has considered in writing in its decision when deviating, and its rationale.

A court may consider the following factors when deviating from the new maintenance guidelines: the age and health of the parties, the parties’ earning capacity, the need for a party to incur educational or training expenses, the wasteful dissipation of marital assets, and the availability and costs of medical insurance, the termination of a child support award, the existence and duration of a pre-marital joint household, actions by a spouse that inhibited the other spouse’s earning capacity or ability to obtain meaningful employment, the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws, the tax consequences to each spouse, the parties’ established standard of living during the marriage, the reduced or lost earning capacity of the payee due to foregoing or delaying educational or career opportunities during the marriage, the equitable distribution of marital property and the income or imputed income on the assets so distributed, and the contributions of the payee as a spouse, and parent.

A spouse’s professional degree and professional licenses earned during the marriage will no longer be treated as a marital asset, pursuant to the new legislation. The provisions of the bill regarding post-divorce maintenance and spousal support guidelines are effective 120 days after signature by Governor Cuomo and is applicable to both matrimonial and family court actions commenced thereafter. The provisions of the bill involving temporary maintenance become effective 30 days after signature by Governor Cuomo.

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The Modern Family

The Modern Family                                                                          LOGO

By: Sherri Donovan, Esq.

“Our fifty-year national experiment with nuclear families—the ideal of two parents, two and a half kids, and the white picket fence—is ending.”

—Sharon Graham Neiderhaus and John Graham, All in the Family

The American family has undergone dramatic change over the past century. Most notably, the new millennium brought a shake-up in the make-up of the family unit. The “traditional” family that rose to its zenith during the 1950s—the first-time-married breadwinner-husband and homemaker-wife and their children—is no longer the majority. Today, the majority of children under age 18 live with either both unmarried parents, one unmarried parent, each parent part of the time, a remarried parent and his/her spouse, a parent cohabiting with a new partner, or neither parent. Most children growing up in the twenty-first century also live either in a two-income household or a single-parent household headed by a working mom.

The modern family has diverged in myriad other ways over the past half century to include a growing number of cohabiting couples, same-sex couples, mixed-race families, childless couples, spouses/partners that are “together” but live separately, grandparents raising grandchildren, and multigenerational families.

These “nontraditional” families are much more prevalent than they were fifty, even twenty, years, ago. Collectively, they currently account for 54% of American families—and their numbers are continuing to rise. Today, you’ll find every conceivable configuration of family in every region, state, city, and community in the United States

  • The share of children living in a nuclear family has declined from almost three quarters to less than half. Today, only 46% of children live with their married mother and father, compared with 61% in 1980 and 73% in 1960.

Fewer Marriages

  • Marriage rates are declining in the United States, dropping more than 50% between 1970 and 2010. In 1960, 72% of Americans age 25 and older were married; in 2011, only 51% were married, an historical low. In 1960, 9% of Americans had never married by age 54; in 2012, 20% had not. If the trend continues, 30% of Americans will have never married by age 54 in 20303.
  • Young adults are less likely to marry than previous generations. In 2013, 65% of adults ages 18–32 (Millennials) were married, down from 30% in 2007 (Gen X). Comparatively, 40% of Baby Boomers and 50% of Silent Gens were married at that age.
  • Men are increasingly less likely to marry than women. In 2012, 23% of men versus 17% of women had never married, a six-point gap. In 1960, 10% of men versus 8% of women had never married, a two-point gap.
  • The rise in never-married adults is steepest among white Americans, doubling between 1960 and 2012, from 8% to 16%.
  • The share of unmarried African-Americans continues to rise. In 2012, more than a third (36%) of African-Americans ages 25 and older had never married, up 9% from 1960. Between 1960 and 2008, the share of African-Americans who were married (first marriage or remarriage) dropped 29 points, from 61% to 32%. During that same time period, the share of married Caucasians dropped 18 points, from 74% to 56%. If current rates continue, an estimated two-thirds of African-American women would be expected to never marry.

The education-divide of unmarried adults has widened, and related gender patterns have reversed. In 1960, American women with college degrees were four times as likely to have never married as women with a high school or less education, 31% versus 7%. Today, women of different educational levels are equally likely to never marry. In 1960, men of different educational levels were equally likely to never marry. Today, American men with a high school or less education are more likely to have never married than men with advanced educations, 25% versus 14%.

Later First Marriages

  • The average age at first marriage has risen steadily—from the historic low of 20 years for women and 23 years for men in the 1950s to 27 and 29 years, respectively, in 2014. What’s more, over the last twenty years, a growing number of Americans in their thirties are marrying for the first time.

Young adults of all socioeconomic groups are delaying marriage, a practice once reserved for college-educated Americans (bachelor’s degree or higher). Between 1990 and 2000, the share of still-unmarried women ages 25 to 29 with a high school degree or less increased for the first time, by 5%. Between 2000 and 2010, it jumped 15 percentage points.

Fewer Divorces

  • The divorce rate has leveled off after declining for decades. The US divorce rate has doubled since 1960—but that is primarily because divorces soared during the late-1960s and throughout the 1970s, reaching a record high in 1981. After that, the divorce rate declined for about 30 years and then leveled off. In 2009, the divorce rate hit a forty-year low, due largely to the Great Recession. As the recession ebbed, divorces inched up three years in a row (2010–2012) before stabilizing.
  • The divorce rate of African Americans continues to rise. About 60% of African Americans who were married in the 1960s and 1970s eventually divorced, while only 18% who married in the 1940s divorced. Today, at 70%, the current African-American divorce rate remains the highest of any ethnic group in the country, as it has been for several decades.
  • The gap between the divorce rates of upscale and Middle America is growing. From 1970 to 1999, the divorce rate of affluent, well-educated (college grad) adults dropped from 15% to 11%, while the divorce rate of couples with moderate incomes and educations (high school grad) increased from 36% to 37%. Between the 1970s and the early 2000s, the proportion of moderately educated working-age adults in first marriages fell 28 points, from 73% to 45%, compared with a 17-point drop, from 73% to 56%, for highly educated adults.
  • Gray divorce is on the rise. Between 1999 and 2009, the divorce rate of adults age 50 or older doubled; the vast majority were middle-aged Baby Boomers (under age 65). The divorce rate of boomers (born 1946–1964), 29% of the US population, is expected to reach 46% in 2015. As the characteristically envelope-pushing boomers replace more traditional seniors and as life expectancies increase, the share of people divorcing late in life—and leaving long marriages—will likely increase.

Current US Divorce Rates

1st Marriage:41–48% *

2nd Marriage:60–67% *

3rd Marriage:70–73% *

*Varies by statistical method used.

Fewer Multiple Marriages

  • The remarriage rate in the United States has been declining. Although the number of divorced and widowed Americans who remarried rose from 14 million in 1960, to 22 million in 1980, and 42 million in 2010, the rate of remarriage has fallen over the last twenty years. In 2011, 29 per 1,000 divorced or widowed Americans remarried, down from 50 per 1,000 in 1990.
  • Today’s seniors are more likely to remarry than their counterparts of the previous century. In 2013, 50% of previously married seniors had remarried, compared with 34% in 1960. Again, the huge Baby Boomer generation accounts for most of this trend.
  • Today’s younger adults are less likely to remarry than previous generations. In 2013, 43% of previously married adults ages 25 to 34 had remarried, compared with 75% in 1960.

Remarriage is increasing among foreign-born US citizens, up 40% since 1960.

Fewer Children

  • The number of US births is declining—falling 9% from 2007 (4.3 million) to 2013 (3.9 million), despite an increase in women of childbearing age during that period.
  • The US birthrate is on a downward trend. After peaking at 112.5 births per 1,000 women of childbearing age (1544 years) in 1957, the birthrate declined through the 1970s and then stabilized at 6570 births until 2007, when it abruptly fell 7%. By 2013, the birthrate dropped another 2%, hitting a record low of 62.5 births per 1,000 women of childbearing age.
  • Women are having fewer children in their lifetimes. The US fertility rate (average number of live births per woman) has dropped from 3.7 children in 1960 to 1.86 children in 2013, a record low.
  • Fewer young women are having children. The average age a woman in the United States first gives birth has risen from 21.4 years (1970) to 26 years (2013). The proportion of women ages 18–29 who became first-time mothers dropped from 41% in 1998 to 36% in 2010. The birth rate of women under age 30 has been declining, too, and reached a record low in 2013. In 2009, for the first time in US history, the birth rate of women ages 30–34 (97.5 births per 1,000 women) exceeded that of women ages 20–24 (96 births per 1,000 women). In 1970, the birth rate was 168 births per 1,000 women ages 20–24 and 73 births per 1,000 women ages 30–34.
  • More women are having children later in life. Between 2000 and 2012, the birthrate rose by 24% for women ages 35–39 and by 35% for women ages 40–44.
  • An increasing number of women are childless. The proportion of women ages 40–44 who have never given birth has almost doubled, from 10% in 1976 to 19% in 2013. However, the share of childless college-educated women in that age bracket has decreased, from 31% in 1994 to 24% in 2008.
  • The number of adoptions has declined in the United States from about 180,000 in 1970 to about 140,000 in 2011. Domestic infant adoptions have fallen from 9% of babies born before 1973 to about 1% of babies born in 2010.
  • The share of childless households has increased. In 1960, slightly less than 50% of households included children; in 2010, only 33% of households included children.

More Children Born Out of Wedlock

  • The share of children born to unwed mothers increased dramatically. In 1960, only 5% of American births were out of wedlock, rising to 11% by 1970, 28% by 1990, 35% by 2003, and a record high of 41% in 2009—decreasing slightly, to 40.6%, by 2013.
  • The out-of-wedlock birth rate declined in recent years. The number of nonmarital births per 1,000 women of childbearing age (15–44) rose from the 1940s century through the twenty-first century, peaking in 2007–2008 at 51.8 nonmarital births per 1,000 women. By 2013, the nonmarital birth rate had dropped to 44.3 births per 1,000 women.
  • Nonmarital births are declining among younger women. Between 2007 to 2012, the nonmarital birth rate dropped 30% for women ages 15–17 (from 20 to 14 births per 1,000 women), 26% for women ages 18–19 (62 to 46), 19% for ages 20–24 (80 to 67), and 19% for women ages 25–29 (77 to 67). The birth rate also declined slightly for unmarried women ages 30–34, from 58 to 56 births per 1,000 women.
  • Nonmarital births are rising among mature women, ages 35 and older. The birthrate of unmarried women ages 35–39 was 7% higher in 2012 than in 2007, and 48% higher than in 2002—rising from 21 to 29 to 31 births per 1,000 women. During that same period, the birthrate of unwed women ages 40–44 increased from 5 births per 1,000 women in 2002 to 7 in 2007 and 9 in 2012, a 29% increase between 2007 and 2012.
  • Nonmarital childbearing is increasing among cohabiting couples—rising from 41% in 2002 to 58% in 2006–2010, with 20% experiencing pregnancy in the first year of cohabitation. Births to cohabiting couples increased from 14% in 2002 to 23% in 2010.
  • Nonmarital births are increasing among moderately educated women. In the early 1980s, 13% of women with a high school diploma had their first child before their first marriage; by 2008, 44% had. During that same period, the share of college-educated women who had their first child before their first marriage rose from 2% to 6%.
  • Nonmarital births have risen dramatically among white Middle American women—from 5% in 1982 to 34% in 2008.

Nonmarital birthrates are decreasing among African-Americans and Hispanics. Between 2007 and 2012, Hispanic women had the biggest decline in out-of-wedlock births, down 28%, from 102 to 73 births per 1,000 women. During that same period, the birth rate among unmarried African-American women declined 11%, from 71 to 63 per 1,000 women.

More Single-Parent Households

  • The number of American children living with a never-married parent has increased dramatically—from 7% of all children under age 18 in 1970 to 45% in 2013.
  • The share of one-parent households has stabilized since 1992, at 9% of US households with minor children (under age 18) headed by one parent.
  • Single-mother households continue to increase modestly—from 25% to 27% of all US households between 2007 and 2012. More than 83% of America’s 14.5 million single-parent families with children under age 18 are headed by mothers.

Single-father households continue to increase modestly—from 4% to 5% between

More Same-Sex Couples Raising Children

  • The number of same-sex couples raising children has almost doubled—from 65,000 in 2000 to 110,000 in 2012. Today, same-sex couples (married and cohabiting) are raising about 10 million children: 73% biological, 21% either step or adopted children, and 6% a combination of biological, step, and/or adopted.
  • The share of LGBQT Americans raising children has increased. In 2000, about 33% of lesbian-coupled households and 22% of gay-coupled households included children under age 18. In 2010, among LBGQT Americans, nearly half (48%) of women under age 50, living alone or with a partner, was raising one or more children under age 18, and about 20% of men were. Today, one in four households headed by same-sex couples includes children.
  • The number of children with gay and lesbian parents has risen dramatically. In 1976, an estimated 400,000 American children under age 18 had a lesbian or gay biological parent; in 1990, an estimated 10 million did. In 2010, about 37% of LGBTQ adults had a child at some time in their lives.

Adoptions to LGBTQ Americans have increased—while adoptions to heterosexuals has decreased. Today, about 20% of same-sex couples are raising at least one adopted child, up from 8% in 2000.

More Immigrant Families

  • The number of foreign-born people living in the United States increased significantly over the last half century, from 9.6 million in 1970 to a record high of 41 million in 2012, a 31.2% increase since 2000 (31 million).
  • The share of immigrants in the total population more than doubled over the last half century, from the historic low of 4.7% in 1970 to 13.1% in 2012 (which is below the historic high of almost 15% in 1890 and 1910, after which the immigrant population share declined steeply and steadily).
  • Migration into the United States has slowed. The majority (63%) of foreign-born residents entered the country before 2000; 30% entered between 2000 and 2009; and only 7% entered between 2010 and 2012. The migration rate also declined in 2013 and 2014.

More families are migrating to the United States. Since 1970, the number and share of women and children immigrants has steadily increased. Previous immigrants were mostly single men and men who left wives and children behind in their native countries.

As my daughter, Jasmine, a modern, bi-racial hipster half jokingly proclaimed, “There should be a sperm bank dedicated solely to people who want mixed race babies”

-Welcome to the 21st century family!

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