Several laws were enacted in 2010 that will significantly affect domestic violence victims. Strangulation became a separate and distinct crime in NYS, enabling law enforcement to charge perpetrators for life-threatening actions that are often seen in domestic violence cases. Sweeping changes were made to NYS divorce laws, including establishing a no-fault option and providing for temporary maintenance and counsel fees to the less moneyed spouse. In addition, several laws were passed to improve the service and viability of orders of protection.
Some of the new laws are summarized below. For more information and a complete list of domestic violence-related laws passed in 2010, please visit the OPDV website.
This law creates a new Article 121 in the Penal Law, titled "Strangulation and Related Offenses," establishing the new crimes of criminal obstruction of breathing or blood circulation (A misdemeanor), strangulation in the second degree (D violent felony), and strangulation in the first degree (C violent felony). All offenses are added to the list of family offenses. In addition, the strangulation offenses are added to various sections of existing law for other considerations, such as DNA collection and hate crime prosecution.
This law allows a spouse to file for divorce on the grounds that the relationship has irretrievably broken down for at least six months. A divorce cannot be granted until the issues of marital property distribution, spousal or child support, child custody and visitation, and counsel’s fees have been resolved by the parties or the court.
Post Marital Maintenance
Under this law, courts are required to assess the respective incomes of divorcing parties and award temporary maintenance, determined by an established formula and set of factors, to the less moneyed spouse. The law also requires the NYS Law Revision Commission to assess the economic consequences of divorce on married couples, to review the spousal maintenance laws of the state and to submit a preliminary and a final report to the legislature and the Governor with recommendations for revisions to spousal maintenance laws (effective immediately).
Counsel and Expert Witness Fees in Divorce Cases
This law establishes a presumption that the less moneyed spouse in a divorce case is entitled to payment of counsel and expert witness fees and requires the parties to submit financial information to the court to determine payment by the other spouse.
Extension of Order of Protection
This law authorizes Family Court to extend a current order of protection for a reasonable period of time, upon a showing of good cause or consent of the parties. The fact that abuse has not occurred while the order has been in effect cannot, in itself, constitute sufficient ground for denying, or failing to extend, the order. The new law requires the court to state the basis for its decision on the record.
Electronic Transmission of Orders of Protection
This law allows Family Courts and Supreme Courts to fax or electronically transmit temporary and final orders of protection, and any accompanying papers, to local police agencies for service on respondents. This will allow for easier and faster service of orders from Family Court and in matrimonial cases.
Police Service of Orders of Protection, Extensions and Violations
Under this law, police officers are required to serve, or provide for the service of, temporary and permanent orders of protection, and any accompanying papers. The requirement also applies to extensions, modifications and violations of orders. The law extends the previous prohibition against charging fees for service of these additional orders. If service cannot be completed, the officer must provide to the court proof of attempted service, including the manner in which the service was attempted.
Orders of Protection Based on Non-contemporaneous Acts
This law prohibits Family Courts or Supreme Courts from dismissing a petition or denying an order of protection solely on the basis that the acts or events alleged are not relatively recent. The law also states that the duration of a temporary order cannot, by itself, be a factor in issuing or determining the length of a final order.
For more information about domestic violence laws passed in previous years visit the OPDV website.