On April 2, 2020, the Child Parent Security Act (CPSA) became law, making gestational surrogacy agreements finally legal in New York State.

Until the new law, New York seriously lagged other States as the ways and means to create a family continued to expand and evolve. For those struggling to have a child, and for LGBTQ families, the restriction was especially painful and limited their options in creating a family in New York.

Prior to April 2, 2020, Domestic Relations Law § 122 stated explicitly that “surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable.” Not only were the contracts unenforceable, but if the surrogate was compensated under a contract, the parties and anyone who helped them prepare the agreement, including attorneys, could be subject to fines. The statute even contemplated a felony conviction for more than one offense.

The CPSA introduces a new article to the New York State Family Court Act, codified as Article 5-C. Parties may now enter into enforceable surrogacy agreements, and those agreements may include compensation to the surrogate, whether by direct payments or payments for expenses. But there are still clear requirements that must be followed to comply with the statute and to enforce the agreement. There are limitations on who can act as a surrogate, what the surrogate must do to qualify, who the intended parents are and how they qualify, requirements as to the intended parents’ relationship to each other, and whose egg can be used.

There is also now codified the Surrogate’s Bill of Rights, which applies to anyone acting as a surrogate in New York, and those rights cannot be waived or limited. Every person acting as a surrogate in New York has the right to make all of their own health and welfare decisions, including how many embryos are transferred, whether they will have a c-section, or whether to reduce or terminate the pregnancy. Every surrogate has the right to their own independent attorney, as well as health insurance and to have all of their pregnancy-related health expenses paid for. They also have the right to counseling in pregnancy-related issues and to a life insurance policy. All of these expenses are to be paid for by the intended parent(s). The surrogate also has the right to cancel the agreement at any time for any reason before becoming pregnant.

The surrogacy agreement itself is only enforceable if it complies with all of the requirements set forth in the statute, and the requirements are complicated and extensive. In addition to requiring provisions about various insurance policies and expenses to be paid on behalf of the surrogate, the statute also mandates the timing of the agreement in the surrogacy process, as well as the placing of funds in escrow with an independent escrow agent to cover base compensation and reasonable anticipated additional expenses for the surrogate. All of these things must be addressed in the surrogacy agreement within the bounds of the law.
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Once the agreement is drafted in compliance with all of the statutory requirements, the intended parents still need to obtain a judgment of parentage, and that process also is regulated by statute. Strict compliance is crucial. If the attorney got it right, and all the requirements are met, the parties are automatically entitled to a judgment of parentage of the baby the surrogate carries. But if the requirements have not been met, a judge may be empowered with discretion to determine parentage based on additional and other factors, despite what the surrogacy agreement says. That could be a nightmare for intended parents, who may find themselves losing entitlement to parental rights because a surrogacy agreement was not properly drafted.

As this is a brand new statute and area of law in New York, it is also new territory for most New York attorneys. Navigating the statute, regulations, and everything they require is complicated and the stakes are extremely high. If you have questions or would like to talk through the process, contact me.  

In 2015, the laws governing maintenance (also known as "alimony" or "spousal support") in New York State were completely overhauled.  The laws applicable to temporary maintenance, or maintenance paid while a divorce is being litigated through the courts, went into effect on October 25, 2015.  The new provisions regarding temporary maintenance will only impact divorce cases filed after the October 25, 2015 effective date.  The laws applicable to maintenance paid after a divorce is final (post-divorce or permanent maintenance) went into effect on January 25, 2016 and will only apply to divorce cases commencing after that date. 
 
Modifications Based on the New Statute
If you receive or pay temporary maintenance pursuant to an order made by the court prior to October 25, 2015, the new statute is not grounds to modify your existing order.  Further, if your divorce is already final and you are paying or receiving maintenance pursuant to your Judgment of Divorce, the passage of this new statute does not provide a basis for modification.  In other words, you cannot seek to change a maintenance order you already have simply because the new statute would be more favorable to you.  It is also important to note that if you have an existing maintenance order, the new statute does not change an obligation to pay in any way. 

How much maintenance will I get/have to pay? 
The new statute provides two formulas for calculating temporary and post-divorce maintenance based upon whether the payor is also paying child support to his/her spouse.  In setting a maintenance award, the court will use the appropriate formula and plug in the payor's income and the payee's income to calculate the guidelines maintenance award.  Under the old statute, a formula was given for calculating temporary maintenance, but there was no formula for calculating post-divorce maintenance leaving much uncertainty.  Under the old statute, there was also only one formula regardless of whether the payor was also paying child support to his/her spouse.

Income Cap and Deviations
The new statute lowers the income cap for temporary maintenance from $543,000.00 to $175,000.00 of the payor’s income, which in 2016 was increased to $178,000.00.  The $178,000.00 income cap also applies to post-divorce maintenance.  This means that in determining a maintenance award, the court will apply the formula only to the first $178,000.00 of the payor’s income.  If the payor has income above the $178,000.00 cap, payment of additional maintenance based upon the surplus income is at the discretion of the court guided by “deviation factors” set forth in the statute.  There are thirteen factors which the court is obliged to consider before deviating in setting temporary maintenance, and fifteen deviation factors to consider before setting post-divorce maintenance. 
 
The formulas contained in the statute will always determine the amount of maintenance to be paid, unless the court determines that the formulas result in an “unjust or inappropriate” outcome.  The court can make that determination and choose to set a different amount as the maintenance obligation, but before doing so the court must consider the deviation factors set forth in the statute. 
 
How long will maintenance be paid?
Temporary maintenance will always last until your divorce action has concluded, unless it is otherwise modified by agreement or by the court.  As to how long post-divorce maintenance may last, the new statute sets forth a duration schedule based upon the length of your marriage.  However, the duration schedule is advisory only and the court may choose not to follow it.  It remains to be seen how closely the courts will be guided by the advisory duration schedule set forth in the new statute. 
 
No Guarantees
While the new statute is intended to reduce unpredictability in maintenance outcomes, it does not completely remove the element of uncertainty.  A court can choose to deviate from the guidelines and there are no guarantees as to how long post-divorce maintenance may last.  It is therefore essential that you have an attorney fully familiar with the prior and current maintenance laws who can assist you to achieve a fair result if maintenance is an issue in your case.
 
Taking Control
Regardless of whether the new maintenance statute applies to your case or whether you are subject to the prior law, you always have the option to take control of your case and deviate from the law by coming to an agreement with your spouse as to whether maintenance will be paid, how much, and for how long.  If a fair and reasonable agreement can be reached, that will remove the element of unpredictability and is always preferable to leaving your financial well-being to the courts to decide.
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In cases where maintenance is an issue, my focus is on resolving this element of your case as quickly as possible. Addressing maintenance quickly will ensure the financial stability of the family while a divorce is ongoing and give you some clarity as to your financial position going forward as you disentangle your economic ties to your ex-spouse.  If you think you may have to pay maintenance, you will want to know the amount and duration so that you can plan for your future accordingly.  If you expect to receive maintenance, you will need this element of your case resolved quickly so that you can budget and make definitive plans for the next phase of your life. 

You also will need questions answered such as who will be responsible for paying the mortgage on your marital home while a divorce is ongoing and how might maintenance impact child support.  An experienced attorney is imperative to getting these questions answered for you by either negotiating with your ex-spouse or navigating the court system. 

Contact me to further discuss maintenance and how the new statute will impact your case.