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With the ratings success of the new NBC television sitcom, The New Normal, it might be worth reviewing surrogacy laws in New York to determine whether the process is as simple and quick as the show makes it seem.

In short, the show is about Bryan (Andrew Rannells) and David (Justin Bartha), who are a gay California couple hoping to start a family through a surrogate named Goldie (Georgia King). Now, there are two common types of surrogacy: traditional and gestational. Traditional surrogacy involves insemination of the surrogate’s egg with sperm, resulting in the surrogate being the biological mother. Gestational surrogacy involves implantation of an embryo, formed from a donor sperm and a donor egg, into the surrogate, resulting in the surrogate being biologically unrelated to the baby.

New York makes surrogacy difficult because New York’s Domestic Relations Law § 122 states that surrogacy agreements are against public policy. Specifically, the DRL states, “Surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable.” It also prohibits people from paying or accepting money in relation to the agreement, except for medical fees and hospital expenses. The state can monetarily penalize anyone who pays a “surrogacy fee” or accepts one. This means that if the intended parents and the surrogate mother are from New York, the surrogate does not have to give up the baby despite having signed an agreement. Thus, the intended parents may only work with a surrogate who resides in a state that allows surrogacy and should draft all agreements in the state where the surrogate lives. Ultimately, parentage will be established in that state as well. One way around the law is by having the surrogate be a family member or close friend, who does not receive compensation. This is legal in New York.

New York’s law complicates the situation for a gay couple, who may not have family members or close friends willing to be surrogates. A gay couple would have to work with a surrogate mother from a state that allows surrogacy contracts with compensation. Problems arise if the surrogate lives in a state that does not recognize gay partnerships in any capacity—whether marriages or civil unions. Because of such anti-gay laws, the birth certificate would only list the biological father. Consequently, the non-biological father would have to sue for adoption if his state allows second-parent adoption, if not; he may have no legal ties to the child.

Fortunately, some New York courts have recognized parental rights of intended parents in surrogacy situations, regardless of the existence of any surrogacy agreements. In McDonald v. McDonald, a woman gave birth to twins after gestating an embryo created from her husband’s sperm and a donated egg. (608 N.Y.S.2d 477, [App.Div. 1994]). The court still considered the woman, who had no genetic connection to the twins, to be their legal mother. Additionally, in Doe v. New York City Board of Health, the court did not require the intended mother of triplets to provide DNA evidence in order to gain parental rights after the surrogate mother surrendered her parental rights. (2004 N.Y. Slip Op. 24303 [5 Misc.3d 424]). These two cases are examples of the courts finding ways to honor agreements between intended parents and surrogates. Despite these cases, not all cases end so amicably because sometimes the surrogate mother changes her mind and decides to keep the baby.

Although the system is designed to prevent a “baby-selling market,” it results in serious and unnecessary restrictions on parents, whether gay or straight, who are simply attempting to start a family via surrogacy rather than adoption.

The following is a general overview of the Federal Adoption Tax Credit and attempts to address certain questions that adoptive parents may have.  The ultimate issue with the Tax Credit now is that it is scheduled to sunset at the end of 2012, and most of its significant portions will not apply in 2013.

WHAT IS A TAX CREDIT?  Generally, a tax credit is used to reduce the amount an individual owes in taxes to the federal government.  For example, let’s say that one owes the government $100 in taxes after calculating income, but there is a $10 tax credit available for which one qualifies.  This reduces final tax liability to $90. At the most basic level, this is how the Adoption Tax Credit operates in 2012.  The IRS website provides examples of the applicability of the credit.

WHAT IS THE PURPOSE OF THE TAX CREDIT? It is intended to reimburse individuals and families for certain qualified expenses incurred during the adoption process.  It is also intended as a mechanism to encourage adoption as a method of family growth.

HOW DOES THE TAX CREDIT WORK? This is a one-time credit for each adopted child.  If a child was adopted in 2009, one could claim the credit in 2009.  If the credit was claimed in 2009, it cannot be claimed again the following taxable year.  If one adopted two children in 2009, one could claim the credit twice for that year.  In the years 2010-11, the credit is refundable, meaning that one would actually get a check in the mail if the adoption was finalized in those years, offset by any income tax owed.  However, in 2012, the credit is non-refundable, meaning the credit reduces the amount owed to the government by the amount shown in the table below, but no refund check will be issued.  Finally, this reduction can extend for up to five years, or until it has been exhausted.

WHICH EXPENSES QUALIFY?  The tax credit will not take into account every expense incurred during the adoption process. The IRS allows the following expenses to be covered by the credit:  (1) adoption fees, (2) attorneys fees, (3) court costs, (4) travel expenses (including meals and lodging) and (5) re-adoption expenses related to the adoption of a foreign child.  Expenses that the government expressly excludes from the credit: (1) any expenses that were already reimbursed by employers and state or local governments, (2) expenses that violate state or federal law, (3) expenses resulting from a surrogate parenting arrangement, and (4) expenses incurred during the adoption of the spouse’s child.

TAX CREDIT EIGIBILITY?  If one earns too much in a given year, one will not be able to qualify for the credit. For example, in 2011, those whose modified adjusted gross income exceeds $225,210 are ineligible to take advantage of the tax credit. Also, in 2011, if a family earned more than $185,210, but less than $225,210, they would qualify for a partial credit. For 2010, that cap is $222,250 with a partial credit offered if income is over $182,520. Finally, for 2012, the credit cannot be claimed if one earns over $229,710, and only a partial credit can be claimed if one earns over $189,710.

IS MY ADOPTEE ELIGIBLE?  The child adopted must be under age 18, or must turn 18 in the year the credit is claimed. The government also allows one to use the credit if one adopts any disabled person who is physically or mentally unable to care for themselves.  If the adoption involves a child born outside of the US, the credit can only be claimed if the adoption has been finalized.  If the child is a United States citizen or resident, the adoption credit can be claimed even if the adoption itself is not yet final.

HOW MUCH IS THE CREDIT?

HOW DOES ONE CLAIM THE CREDIT?  One must complete Tax Form 8839, the Qualified Adoption Expenses Form, and attach it to the standard 1040 Tax Form. Form 8839 has its own separate instruction form obtainable through the IRS website (http://www.irs.gov/pub/irs-pdf/i8839.pdf). Because Form 8839 requires carrying over certain numbers from Form 1040, it is best to complete them together and file in the year the adoption is finalized.

WHAT DOCUMENTS DOES ONE NEED TO FILE WITH FORM 8839?  It depends on whether the adoption has been finalized or not. If using an accountant, the following forms should be provided to the accountant for submission. Not all of the forms have to be submitted, but the more that are submitted, the fewer problems one could potentially face in the future.

For a domestic adoption that has not yet been finalized: (1) an adoption taxpayer identification number, (2) a completed home study by an authorized placement agency, (3) the placement agreement with an authorized placement agency, (4) any hospital document indicating release of the newborn child to the taxpayer for legal adoption, (5) a signed and sealed court document indicating approval of placement of the child with the taxpayer, and (6) an original affidavit or notarized statement from an adoption attorney or other authorized person stating the signer placed or is placing the child with the tax payer for legal adoption, or is facilitating the adoption process for the taxpayer in some official capacity.

For domestic and foreign adoptions that have been finalized in the US: (1) an official, signed and sealed copy of the adoption order or decree, (2)  a signed and sealed copy of a foreign adoption decree, if available, (3) the child’s visa, and (4) if the adoption was pursuant to the Hague Convention, the Hague Adoption Certificate.

SOME SPECIFICS

WHAT IF MY EMPLOYER CONTRIBUTED TO ADOPTION COSTS?  This is allowed and the credit can still be claimed.  An example that best illustrates how this works:  let us assume that the adoption was finalized in 2012.  Looking at the table above, one would see that the credit would cover qualified expenses up to $12,650; but $20,000 was spent in qualified adoption expenses. One’s employer contributed $5,000 to the process.  One would then have to subtract the $5,000 from $20,000, leaving one with $15,000 in uncovered qualified adoption expenses. Now one can apply the credit because one still has $15,000 in qualified adoption expenses that were not covered by the employer, which can still be offset by the credit amount for 2012.  If one subtracts $12,650 from $15,000, all of the credit would be used.  In sum, costs covered by the employer reduce the dollar amount of the qualified expenses to which one applies the tax credit to.

CAN ONE APPLY FOR THE TAX CREDIT IF ONE DIDN’T KNOW ABOUT IT BEFORE AND MY ADOPTION WAS FINALIZED IN A YEAR WHEN THE CREDIT APPLIED?  It is possible to apply for the credit if one didn’t know of its existence when one first adopted, but one can only go back as far as 2003.  Be aware that the further back one intends to claim the credit, the more complex the process becomes. There are certain specifics that make this answer more complex than it seems. If, for example, one adopted in either 2008 or 2009, but did not claim the credit, one must file the credit in the year the adoption was finalized. The tax return must be amended for the year the adoption was finalized, and all the following years to carry forward any tax credit amounts not used in prior years. If, however, one adopted between 2005 and 2007 and did not claim the credit, it is much more complex because one is generally not permitted to amend a tax return for credit purposes for longer than the past three years.  But the IRS states that it can be done.  If one adopted between 2003 and 2004 and did not claim the credit, the three year amendment rule still applies.

WHAT WILL THE TAX CREDIT BE AFTER 2011?  Because predicting tax policy is like trying to predict the weather, no one can definitively say what it will be in 2013.  There are indications the income limits will be significantly lowered in 2013, and the credit itself will most likely only be applicable to the adoption of special needs children.  The credit will expire for all other types of currently covered adoptions on December 31, 2012, unless the law changes.

On October 31, 2011, our planet will have reached a population milestone; seven billion people will be competing for resources. Issues obviously arise when population growth is predicted to outpace our planet’s ability to sustain it. These issues are not new either; some may remember having read the gloomy predictions by Malthus in his Essay on the Principle of Population. Though it was written in the 18th and revised through the early 19th century before issues of peak oil use, water conservation, land use, and pollution became prevalent, Malthus nevertheless recognized that unchecked population growth leads to periods of severe societal distress.

Most modern and modernizing countries have taken affirmative steps to curtail rampant population growth through teaching proper use of contraceptives and other pregnancy prevention measures. India, with a current population closer to 1.2 billion individuals is set to eclipse China as the world’s most populous country within the next half century. As indicated in this CNN article, Indian officials go so far as to offer economic rewards to those who subject themselves to sterilization. While such measures may be questioned by some, they are defended as being totally voluntary. Still other countries have used far more draconian measures to slow population growth. The primary and often criticized case is China and its contentious “One Child” policy. Is this policy more attractive as a desperate measure to curtail population booms, especially in Asia where more than one-third of the seven billion people live? I argue that it is not, as its effects on the population and the socio-economic imbalances it has created will prove to be detrimental to China’s social and economic development in the long run.

At a current population of 1.34 billion people, China currently holds the world’s record as the most populous country.  This article indicates that when the “One Child” policy was adopted in 1979 it was not intended to be a permanent solution. China was willing to sacrifice one or two generations until the replacement levels reached an average of 1.5 children per woman of reproductive age. According to population studies cited here, in 1955 China’s fertility rate was 6.1 children per mother of reproductive age. Since then it has fallen to 1.8 in 2010. It is unclear whether the policy will actually be terminated upon reaching its goal. Canadian demographer and former United Nations Fund for Population Activities representative, Aprodicio Laquian, states in the CNN article that if population control had not been enforced in this manner, China would most likely be economically and socially worse off today.

Is Laquian right in his assertion that China has economically benefited? In the short term, perhaps there is some merit in his statement; but China seems to be headed for long term problems if its population control measures are not eliminated or significantly changed.  Businessweek points to a major problem in population trends resulting directly from the One Child policy. Citing UN population studies, the article explains that the pool of 15 to 24 year olds (those most likely to be employed in the numerous factories supplying foreign markets with low-cost products) will fall by 62 million by 2025. Last year, 68% of China’s exports, of the type referenced above, were valued at $1.09 trillion. The problem is clear; the increasing cost of labor, due to a reduction in supply, will  likely drive up the cost of goods making them less attractive globally.

Other social issues are looming.  Today China has a rudimentary security and retirement system in place which struggles to support the current elder population. It is lacks medical facilities for the elderly, retirement homes, care facilities, and retirement care workers.  Can China put in place  a comprehensive and capable care system in time to meet the demands of its aging population over the next four decades and, if it can, the obvious question is, at what cost to growth?.

The One Child Policy, in combination with the traditional preference for male children, has led to a highly increased rate of selective abortion, infanticide, and abandonment of girls in China. According to this recent article, if left to its own devices, nature produces 104 to 106 males for every 100 girls. China’s ratio is 120 to 100.  This means that there are 30 million men who will never find wives at home. The article states that this disparity has led to the growth of a criminal industry involved with kidnapping women from neighboring countries, contributing to global human trafficking problems.

The negative social and economic consequences of China’s “One Child” policy have had thirty years to come to fruition.  Although China’s economic power has grown exponentially, it may find itself crippled by its own social engineering policies within the next half century. Even if it reverses the policy, the problems mentioned above may not be avoidable. It  has the potential, as a command economy, to dictate where its resources should be spent.  And it can more easily allocate funds to the sectors involved in mitigating the unintended effects of the policy, but such measures may be extraordinarily costly in both the long and short run.  Either way, whether it repeals its policy or not, or funds institutional change, it looks as though China may be headed for a prolonged period of slowed growth as a direct result of its social engineering attempt.

In 2001, Long Island surgeon, Dr. Richard Batista, donated his kidney to his wife, Dawnell, in order to save her life.  Although the surgery was a success, the same cannot be said for the marriage which ended when Dawnell filed for divorce in 2005 after 15 years. Batista claims that his wife began cheating on him eighteen to twenty-four months after she received the transplant.

Instead of fighting over the million-dollar home they shared, Batista is asking that either his kidney be returned or that he be compensated for it. He is seeking $1.5 million in damages. Batista claims that his demand stems from frustration regarding the ongoing negotiation process with his soon to be ex-wife. He decided to go public with the details of his divorce as a last resort after being prevented from seeing his three children for months at a time.

Matrimonial attorneys were quick to voice legal opinions that Batista’s claim for damages would fail. In the Huffington Post article “Divorcing Man Wants Kidney Back After Wife Cheats,” a Manhattan attorney, Susan Moss, argues that no judge will entertain this demand because judges are unwilling to place a value on such assets.  She cites a similar case in which a husband wanted to be repaid for the cost of breast implants but was denied compensation.

Moss’s prediction was correct. In February, a Long Island Judge rejected Batista’s request on the grounds that it would violate public policy. The Judge’s Referee, Jeffrey Grob, wrote, in a ten page ruling, that entertaining Batista’s claim would make the statement that human organs are commodities.

Divorces can become ugly, but what is the world coming to when we start fighting over body parts?

For more information see “Judge Rejects Long Island Doctor Dr. Richard Batista’s Bid to Charge Estranged Wife for Kidney”

Somebody going through a contentious divorce can be very unpredictable. A person with a combative and calculating personality can make a divorce proceeding extremely unpleasant and difficult for all involved, including the courts. It is not uncommon for somebody like this to file orders of protection without merit, relocate children without consent, hide assets and underreport income. Liquid assets are often placed in foreign bank accounts, put into questionable investments or squandered. Once these funds are gone, they are unavailable for consideration during equitable distribution.

Hidden assets and income affect the victim spouse when a court is deciding an appropriate property division, maintenance and child support.  If a spouse hides or wastes income and assets, the victim spouse will not have the entire marital pot available for division by the court.  Instead, the victim spouse can only receive an equitable share of the diminished pot.  When this occurs, how can a court provide a remedy to a victim spouse?

In equitable distribution, the court maintains discretion over the degree and nature of the penalty imposed for failure to comply with disclosure orders. In some cases, after it has been determined that income and assets were hidden or wasted in contemplation of divorce, the court can decide that unequal distribution of marital assets is warranted by the egregious economic misconduct. Although this method provides the victim spouse with some redress, the victim spouse is never truly whole, since the award is being apportioned from a distorted marital pot.

Moreover, it has to be established that assets and income have been secreted and concealed for a court to order unequal distribution.  This can be difficult for spouses who do not have knowledge of the couple’s finances.  Below are a few cases highlighting how some New York matrimonial courts have handled this issue.

In Maharam v. Maharam, a leading case on hidden assets, the defendant- husband secreted assets in foreign bank accounts and squandered sizable sums of money on luxury items and admitted adulterous affairs. Due to the existence of the foreign bank accounts and the squandered money, the court ordered a 65%-35% distribution to the victim spouse. The Maharam court reasoned that penalizing one party in the distribution of assets from the marital estate was appropriate when that litigant’s egregious economic misconduct prevented the court from making an equitable determination.

Similarly, in Goldberg v. Goldberg, the plaintiff-wife established that the defendant-husband had dissipated marital funds and secreted marital assets through conveyances of those assets to various trusts and alter ego corporations. The court decided that a distributive award to the plaintiff, in lieu of equitable distribution, was proper to achieve an equitable result in the distribution of property. In Contino v. Contino, the court awarded the defendant-wife a distributive award in lieu of equitable distribution. The plaintiff-husband withdrew and concealed funds from bank accounts so they would not be distributed during the divorce. The court maintained that secreting assets in order to prevent the trial court from making an equitable distribution of property supported a finding of economic fault, and the court considered the missing assets when making its distributive award.

People are not likely to stop hiding assets.  Couples can avoid these problems if they plan ahead. Couples can create a prenuptial agreement including a clause listing the consequences of a spouse hiding assets. It is important for all spouses to know every aspect of the other spouse’s financial status. This information will enable a spouse to detect discrepancies presented during the divorce proceedings. If the issue does come up in court, the victim spouse will have evidence to prove that the other spouse is, in fact, hiding assets.   After the commencement of a divorce, targeted discovery, such as immediately subpoenaing bank records, will help establish the marital pot before assets are wasted and hidden. Sometimes, the use of a private investigator is useful since transferring large amounts of money can leave a paper trail. Overall, preventive planning is necessary to protect one’s financial interests when a marriage dissolves.

The American Association of Matrimonial Lawyers (AAML) recently conducted a survey of divorce attorney which revealed a growing trend involving evidence found on social media outlets such as Facebook, Twitter and Match.com. According to the survey, 66 percent of attorneys use Facebook to find incriminating photos or statements while 15percent use MySpace and only 5 percent use Twitter.

People do not realize that what you post on sits such as Facebook are permanent, even if you close your page or later delete comments.  Racy pictures and derogatory comments are discoverable because there is no right of privacy in social media forums. This information can be used as evidence of “ accurate depictions of what someone did, said (or intended to say) at the time. MSNBC.com recently highlighted some examples of such posts:

-In court, a mother denied that she smokes marijuana but posted photos of herself partying and smoking pot on Facebook.

-A husband went on Match.com and declared he was single and had no children while he was seeking primary custody of his actual children.

- A husband denied that he had anger management issues but under the “write something about yourself” section on Facebook: “If you have the balls to get in my face, I’ll kick your ass into submission”.

Because postings such as these can hurt a client’s case, more attorneys are advising their clients to shut down Facebook pages and Twitter accounts when in the admist of a divorce.

For more information, see “Facebook Can Haunt You in Your Divorce” (Razai & Nefulda, businessreviewusa.com)

Massive budget cuts and layoffs in the NYC court system are causing long delays in granting of uncontested divorces. Divorce cases are taking longer to resolve in most counties, with Richmond County and Kings County judges taking up to 10 months to sign uncontested divorce judgments.

William J. Leininger, a veteran matrimonial attorney, said “the wait to obtain a signed judgment finalizing a divorce is now nine months or more after both sides agree to terms. The finalization process used to take three or four months.” And that, he says, is “on top of the time typically required –  from a few months to two years — to reach the divorce settlement.”

These delays are hindrance to remarriage by the parties and, far more importantly, to payment of needed alimony and child support, because settlements incorporating them are unenforceable without the signed judgment. This can place some parties in financial hardship as they wait around for the final judgment, without which they cannot collect the promised sums they need to continue to support their families. Under New York’s no-fault amendments, parties may seek pendente lite support, but that, too, takes time and burdens the system, and meanwhile they are without needed support. Pendente lite support is often used to provide support to the lower income spouse while the divorce process is pending.

According to the New York City Bar Association, the state judiciary, in 2010, was subjected to a $170 million budget cut. About 8 percent of its workforce, or 1,300 employees, left the courts due to early retirements and layoffs.

Meanwhile, in New York County it only takes four to five months to finalize a divorce, but this time is increasing as more attorneys flock to file their divorces in New York County under Sec. 509.

The new administrative judge said “There have been resources transferred to the matrimonial part. I can tell you the entire staff in the matrimonial part is working very hard to decrease any type of delay, but, sometimes, it’s innate in the matrimonial part. It’s my belief that we should be up to date as of the end of March.”

A recent article in the Huffington Post titled “Celebrity Adoptions: Do Stars Get An Advantage?” discusses how some new celebrity parents are bringing a good face to the adoption process, something several people in the adoption community think is important. However, the article questions whether celebrities are getting preferential status when adopting internationally, primarily due to their excess of wealth. The international adoption process can be a long, expensive, and tedious one for families, yet certain celebrities, like Angelina Jolie, Sandra Bullock, and Madonna seem to be able to adopt international children rather easily. This article suggests that because “international adoptions are often a much longer and more complicated process…celebrities can pay to get priority”.[1]

“According to David Smolin, a professor at the Cumberland Law School at Samford University and an international adoption expert, non-residents are not allowed to adopt in Malawi, but because of the humanitarian aid Madonna poured into the nation, she was able to skirt some rules when adopting her two children, Mercy James and David Banda.”[2] Is this fair? Should wealthy individuals be able to go around established international laws just because they have money to throw at the issue?

Over the years, American culture and its view on what “family” means has changed drastically.  Same sex marriage (while not allowed everywhere) is not as shocking as it once was.  Single motherhood has become acceptable and many couples feel that marriage is becoming obsolete.  Despite these radically shifting social views, the laws in the U.S. governing what makes up a “family” are slow to keep up.  And the people impacted the most by these legal doctrines are sometimes the least aware of them.

Take Chukwudera Okoli, who married his wife, Blessing, in 1991.  Despite years of trying to conceive, the couple remained childless through the years – including when they separated in 2001.  However, in 2003, Blessing became pregnant with twins through the use of in vitro fertilization, using donor sperm and a donor egg. On March 6 2012, the Appeals Court of Massachusetts affirmed a decision by a judge from Probate and Family Court  requiring Okoli to pay child support to the twins.

Usually, there would be nothing unusual about a married parent being required to pay child support.  Massachusetts, like New York, has a legal presumption that a man is the legal father of any child to whom his wife gives birth to, in addition to a law aimed specifically at artificial insemination, which recognizes the husband as the legal father of children his wife has conceived through artificial insemination.  Though Okoli and his wife were separated, they were not divorced (i.e. they were still married) at the time of the birth of the twins and neither of the parents is genetically related to the children.  Yet the internet blogsphere and media portrayal of the decision clearly shows a lack of understanding of either legal issue.  One such example of this confusion is a description of the decision of the Court of Appeals on Opposing Views, misstating the time of birth as “after the divorce,” when there was no legal documentation of any divorce – a legally crucial fact.

Okoli appears to be the victim of more than just ignorance of the paternity presumption though.  In the worst case scenario, his fear of deportation was also exploited by Blessing when she threatened to not support him in getting his green card if he would not give her consent for her to undergo an IVF process to receive donor eggs and sperm in to conceive in vitro.  Yet the argument that his consent should be void due to duress failed in court because Okoli failed to brief this claim properly.  One possible reason for that could be as Blessing attorney claimed in Opposing Views: Okoli already is a legal citizen and cannot be deported.  Furthermore, the Appeals Court ruled that his consent for Blessing to undergo IVF amounted to an intent “to create a child,” which is all that is required to be recognized as a father via artificial insemination in Massachusetts, “rather than consent to become a parent.”

Adding further to the confusion in the media, Okoli and his ex-wife had signed an agreement relieving him of any financial responsible for any children Blessing gave birth to through the in vitro procedure.  Not being aware of how consenting to his wife’s use of donor eggs and sperm would legally recognize him as a parent of any resulting children, despite the fact that his own sperm was not used, Okoli (or many others) could easily be led to believe the state should respect the contract between him and Blessing.  But the state’s agenda for recognizing Okoli as the father of the twins is clear.  Although the media tends to portray cases like Okoli’s as the state trying to financially ruin unsuspecting people, the state is looking out for the infant twins’ best interest.  Which, in this case, is some extra financial support.

It has been over a year since unilateral no-fault divorce was adopted in New York. No-fault divorce, which now exists in all states, permits one spouse to receive a divorce by swearing that the marriage has been irretrievably broken for six months or more.

Ever since the law’s passage, it has had critics and supporters. The law, which includes a small provision about temporary spousal support (also known as alimony and maintenance), is currently being analyzed by the state’s independent Law Revision Commissions:  According to a Wall Street Journal article by Sophia Hollander, there are “troubling aspects” of the strict formula for awarding temporary spousal support. A report is due in April.

Temporary maintenance is awarded when the income of the “less-monied” spouse is less than two thirds the income of the spouse with the higher income. The formula calls for maintenance to be the lesser of a) 30% of the payor’s income minus 20% of the non-payor’s income or b) 40% of the combined income minus the non-payor’s income. Income for calculation of temporary maintenance is to be capped at $500,000, and judges are free to adjust amounts when the income exceeds $500,000.

The law aimed to protect the low-income spouse, but ended up hurting the affluent spouse by shifting income unfairly. At times, it even transformed the richer spouse into the poorer one.

The movement is to make the law less binding on judges and more advisory; however, the fear is that it will lose its effect.

Westchester Assemblywoman Amy Paulin, the primary sponsor of the alimony law, said, “[The 2010 law is] better for women. But we do want to make it fair, and we do want to respect everyone involved.”

However, how is this fair?