The relationship between the parties evidences a classic, unequal power dynamic which is the hallmark of abusive relationships. The parties met in 1989 when plaintiff was only twenty-one years old, having recently moved to New York City from Puerto Rico, and was working several jobs to support a modest lifestyle. Defendant was a successful businessman, fifteen years plaintiff's senior, who quickly began providing plaintiff with a sizable allowance and induced him to quit his jobs. In addition to his financial dependence on defendant, plaintiff was largely ignorant of the parties' financial circumstances, how decisions were made, how property was acquired and financed, or how bills were paid over their decades-long relationship. Disturbingly, this unequal dynamic was evident in the parties' intimate life, where defendant used his power as the breadwinner to instill fear and coerce plaintiff to engage in risky, unprotected group-sex while defendant watched. As a result, plaintiff contracted HIV and was later diagnosed with full-blown AIDS.

Now that the relationship has ended, plaintiff, ill and largely supported by public assistance benefits, seeks maintenance from defendant in place of the financial support he received from defendant both before and during their marriage. Because he believes that defendant cannot be relied on to make monthly payments of maintenance, he requests that it be paid in one large lump sum, and because he is dependent on government health benefits to cover his astronomical medical expenses, he seeks to have that money paid into a Special Needs Trust ("SNT "). Plaintiff also seeks a substantial award of equitable distribution, contending that the parties owned significant real and personal property and that defendant is the longtime owner of a lucrative business. As with maintenance, plaintiff askes that defendant be required to pay the distributive award into an SNT. Finally, plaintiff seeks a judgment for arrears resulting from defendant's failure to pay court-ordered temporary maintenance.

Further complicating this case is defendant's sudden and mysterious "unforeseen financial hardship," which conveniently began at the time this divorce commenced, and which he claims makes him unable to pay maintenance and leaves no assets to be equitably divided. Added to this is defendant's repeated failure to provide documentation to verify his claimed loss of income and assets alongside his complete failure to comply with plaintiff's discovery demands. These failings on defendant's part, coupled with the plaintiff's lack of knowledge about the couple's finances while they were together, greatly hindered plaintiff's ability to demonstrate the actual state of defendant's financial affairs. It also hindered my ability to make precise financial determinations, despite having conducted a three-day trial to resolve the issues of equitable distribution, spousal maintenance, and temporary maintenance arrears.

The parties' relationship dates as far back as 1989. Although they solemnized their union in a commitment ceremony in 1990, the parties were not legally married until November 11, 2011, soon after New York State finally granted same-sex couples the right to wed. At the time their relationship began, defendant was a successful entrepreneur who ran his own medical billing business. Plaintiff was twenty-one years old, had recently arrived in New York City from Puerto Rico, and was working several jobs as a building superintendent, telephone operator, and dancer. Although plaintiff's birth name is F.R.V.^[FN1] and he was born in Puerto Rico, defendant preferred to introduce him to others as G.A. and explain he was Brazilian. Shortly after they met and began dating, defendant induced plaintiff to quit his jobs, leaving plaintiff financially dependent upon him from that point forward.

At some point, defendant began coercing plaintiff to engage in unprotected group-sex with defendant's friends and associates, as well as with strangers, while defendant acted as a voyeur. This coercion caused plaintiff to experience a fear of retaliation by defendant and to develop suicidal ideations.^[FN2] Most likely as a result of his participation in these activities, plaintiff [*2]contracted HIV and was diagnosed with full-blown AIDS in 1991.^[FN3] Fortunately, his medical condition has yet to prove fatal, but he experiences a number of excruciating symptoms and side effects, including irritable bowel syndrome, nausea, hot flashes, night sweats, day sweats, and ischemic heart disease. In addition, plaintiff takes multiple medications daily, which cause side effects like diarrhea, vomiting, and weight loss, and he has endured bouts of cancer, pneumonia, and HPV. He has also experienced serious cardiac episodes and has required long-term hospitalization on several occasions. Both defendant and plaintiff acknowledge that managing plaintiff's health is a "full time job," and he is unable to work.

Following plaintiff's initial AIDS diagnosis, the parties' relationship was punctuated by periods of time where plaintiff's health was in flux. Sometimes, plaintiff was able to fulfill his role of appearing "aesthetically healthy" and, in his words, "arm candy," while, at other times, plaintiff was ill or hospitalized. Despite the diagnosis and health issues, defendant persisted in making plaintiff continue to engage, against his will, in sexual activity with groups of other men.

The parties enjoyed a lavish lifestyle throughout their marriage, one that included several high-end homes in New York City, upstate New York, Florida, and Puerto Rico. They also possessed luxury cars, such as a 1957 Ford Thunderbird, a Porsche RS Boxster, and several Jaguars and Infinities, along with a 1967 Bertram boat and a custom-made Garwood boat. In addition to having a personal shopper at stores such as Gucci and Prada, plaintiff was able to buy designer clothes, jewelry, and Rolex, Cartier, and Breitling watches.^[FN4] The parties traveled extensively, and defendant took a month-long European vacation every year.

Throughout the relationship, defendant provided plaintiff with a monthly allowance between $10,000 and $18,000, paid all of plaintiff's bills, and completely managed the parties' finances, the details of which plaintiff was completely unaware. Plaintiff testified that it was not until the parties' separation, when he was fifty-one years old, that he began to learn how to manage his own day-to-day finances and pay bills. He further testified that defendant continued to provide him with financial support until plaintiff filed for divorce in 2016.

Defendant funded the parties' lifestyle through his ownership of his medical billing company, which reported profits of $2.1 million in its 2011 tax return.^[FN5] Since the commencement of the divorce, however, defendant claims he has experienced an almost total loss of both income and assets. At trial, defendant testified that he had to wind down his business, filed for bankruptcy, lost his homes in foreclosure, and now relies on his friends to lend him money or pay for his necessities. Plaintiff countered that defendant's assertions are simply efforts to "hide his actual income," pointing out that defendant dissolved his business the same [*3]month that plaintiff filed for divorce and noting that defendant's most recent tax return filed in 2018 declared an income of $1.6 million from dividends and capital gains. Plaintiff also showed at trial that, claims of poverty notwithstanding, defendant continues to engage in philanthropy, actively fundraises for a New York State Senator's re-election campaign, and serves on various boards and holds leadership roles for a local nursing home, nature center, and rotary club.

It is defendant's contention that the earnings reflected on his 2018 tax return were merely a "paper trail" as a result of a "loan being transferred to income from the corporation's close." Prior to trial, defendant repeatedly voiced his intention to call his accountant as a witness to explain the discrepancy between defendant's 2018 tax return and his actual income, but no such witness was ever called. Moreover, as a result of a preclusion order that I imposed after defendant's chronic and unabated failure to comply with plaintiff's demand for the production of documents or to respond to his interrogatories, defendant's trial evidence was limited to what he had actually furnished to plaintiff in advance of the trial. Notably, even when I indicated I was prepared to lift some those limitations, defendant nevertheless persisted in his failure to produce the most basic documentary evidence or call any witnesses other than himself to support his claims.

The clear impression left by defendant's actions was that his intent was to avoid disclosing the true state of his finances. Instead, he was seeking to improperly impose on plaintiff the burden of proving those finances, a burden plaintiff was unequipped to sustain.

Added to defendant's failure to comply with discovery orders was his failure to make payment in accordance with a pendente lite maintenance order that I issued in May 2017. Even after I lowered the amount of the monthly payment from $2,500 to $1,250, defendant, claiming financial inability, paid only sporadically.

A. CREDIBILITY

In this financial trial, with its dearth of documentary evidence, the credibility of the witnesses — consisting solely of the parties themselves — was central. This is particularly so with regards to defendant, who argued that he is financially unable to pay maintenance to plaintiff and that he no longer possesses any assets from which to award plaintiff equitable distribution. At trial, he doggedly maintained that he experienced "unforeseen financial hardship" since the separation of the parties, resulting in his having to file for bankruptcy, the foreclosure of his home, and his persistent underemployent despite his best efforts to work.

It is well-established that in matrimonial trials, as elsewhere, credibility determinations are an issue for the trier of fact to decide and "are entitled to great weight on appeal" (Winter v Winter, 50 AD3d 432, 433 [1st Dept 2008]). Furthermore, the court, as the sole trier of fact, is warranted in disregarding statements from witnesses it deems "unworthy of belief" (In re Michael D., 109 AD2d 633, 634 [1st Dept 1985]).

Here, the testimony of plaintiff and defendant was in direct conflict and irreconcilable as to many facts which bear on equitable distribution and maintenance. The most significant differences in their testimony, of course, go to defendant's financial status: plaintiff testified to defendant's substantial wealth while defendant attested to his near-indigency. But as a direct result of being deprived of access to information regarding defendant's finances, plaintiff lacked the ability to counter many of defendant's assertions. Thus, I was unable to effectively compare the parties' testimony on certain financial issues.

What I could do, however, was weigh each side's overall truthfulness when hearing each of them testify as to matters that were known equally to both. This, in effect, was employing a variation of the principle of falsus in unum, falsus in omnibus: if one side testified falsely as to certain established facts, even if not directly involving finances, then the assumption could be made that the same side was not testifying truthfully about a financial matter.

By way of example, plaintiff testified that he met defendant in 1989 in a club where plaintiff was working as a dancer (Transcript of 10/10/19 at 27, lines 5-6), that the parties had a commitment ceremony in 1990 (Transcript of 10/10/19 at 27, lines 11-23), that plaintiff was diagnosed with HIV in 1991 (Transcript of 10/10/19 at 36-37), and that the parties were legally married in 2011 (Transcript of 10/10/19 at 27, line 8). By contrast, defendant testified that he did not meet plaintiff until 1996 when plaintiff was working as an escort (Transcript of 11/7/19 at 6-7), that plaintiff was diagnosed with HIV only a month later (Transcript of 11/7/19 at 9-10), and that there was no commitment ceremony prior to the parties' legal marriage in 2011 (Transcript of 11/7/19 at 12).

In this same vein, defendant testified that plaintiff's name was G.A.F. (Transcript of 11/7/19 at 42-43), that he was of Brazilian descent, and that plaintiff took it upon himself to take defendant's last name of "R." In contrast, plaintiff testified that his birth name was F.R.V. (Transcript of 10/10/19 at 31), that it was defendant's idea to change plaintiff's name to G.A. (Transcript of 10/10 at 31) and to take defendant's last name of "R." (Transcript of 10/10 at 32), that defendant has always known he is of Puerto Rican descent (Transcript of 10/10/19 at 32), and that defendant liked to tell people plaintiff was Brazilian because it was "exotic" (Transcript of 10/10/19 at 32, lines 13-16). In support of his assertion, plaintiff provided his name-change certificate which indicated that his name at birth was F.R.V. and that he was indeed born in Puerto Rico.

In a matter closer to finances, both sides testified that during their relationship defendant provided plaintiff with cash and other support totaling between $10,000 and $18,000 per month. Their testimony differed, however, about how this money was spent. Defendant testified that the $10,000 to $18,000 represented out of pocket payments he made towards plaintiff's HIV medications, either uninsured or unreimbursed costs, and medications obtained outside of a pharmacy (Transcript of 11/7/19 at 4-5; at 15-19). Plaintiff, on the other hand, testified that his HIV medications were covered by a public program, Medicaid/HASA (Transcript of 11/7/19 at 102, lines 19-25), and that the money he received from defendant was for general spending. Further, plaintiff testified that defendant oftentimes accompanied him to the pharmacy to pick up his prescriptions and, consequently, was fully aware they were fully covered by insurance (Transcript of 11/7/19 at 104, lines 2-8).

Given that defendant worked in the medical field with a focus on medical billing, it is beyond belief that defendant would continue for years to voluntarily pay out of pocket for HIV medications exceeding $10,000 a month when a person in his position would most certainly have been aware of the availability of Medicaid, private insurance, or other alternatives. While this discrepancy is arguably not strictly material to the issue of defendant's current finances, it, along with the other verifiable misstatements, calls into question defendant's overall credibility. At the same time, plaintiff's testimony on these matters supports a finding that he was, in all respects, a credible witness, whereas defendant was not.

B. ADVERSE INFERENCE

"A party seeking an adverse inference must make a prima facie showing that the document in question actually exists, that it is under the opposing party's control, and that there is no reasonable explanation for failing to produce it" (134 W. 119th St., Inc. v Hart, 880 NYS2d 874, 874 [Sup Ct, NY County 2009]). Where a party fails to provide discovery, sanctions can be imposed, which may include issue resolution (CPLR § 3126; id.).

Defendant repeatedly failed to provide financial documentation requested by plaintiff or required by the court, even when facing the imposition of a preclusion order. This resulted in plaintiff's counsel having to attempt, with limited success, to subpoena defendant's financial documents. Moreover, when given some leeway at trial, despite the preclusion order, to produce documentation necessary to substantiate his claim that he is practically destitute, defendant still failed to do so. This failure included furnishing proof of the purported bankruptcy filings and foreclosure actions, as well as producing anything from the volumes of financial records that a business owner would undoubtedly possess.

One can readily assume that the documents sought — and needed to substantiate defendant's assertions that he filed for bankruptcy, had his property foreclosed, and saw his company become worthless — would be in defendant's control and could be easily produced. For reasons known only to himself, defendant chose not to produce them. Similarly, defendant chose not to call his accountant to testify, a witness who was under his control and whose testimony was necessary to substantiate his claims concerning his business having lost money despite the tax returns showing a significant profit. The failure to call this witness under these circumstances gives rise to a missing witness charge to join that for missing documents (see Kupfer v Dalton, 169 AD2d 819 [2d Dept 1991]). Accordingly, I shall take an adverse inference, with the inference to extend to issue resolution.

A. EQUITABLE DISTRIBUTION

New York has long-recognized the marital relationship as an economic partnership in which spouses share in both its profits and losses during the life of the marriage (Mahoney-Buntzman v Buntzman, 12 NY3d 415, 420 [2009]). "The Domestic Relations Law contemplates an equitable, not necessarily equal, division of marital assets based on the parties' respective contributions to the marriage" (K. v B., 13 AD3d 12, 17 [1st Dept 2004]). A trial court has broad discretion in deciding what is equitable under the circumstances, subject to certain enumerated factors set forth under DRL § 236 (B)(5)(d). As further discussed, these factors include such things as "the wasteful dissipation of assets."

Because of plaintiff's lack of knowledge and defendant's lack of candor as to the parties' finances, it is unclear which residential properties were owned by the parties, as opposed to rented or leased, and which were purchased or sold during the marriage. The only property where anything definite is known is a house in Puerto Rico, which the parties purchased for $380,000 and is titled in plaintiff's name. All that is known about the other properties, including a valuable home in the Thousand Island region of upstate New York, is that defendant alleges, without supporting documentation, that they all have been foreclosed or otherwise lost, while plaintiff contends they were largely sold or otherwise transferred in less than arms-length transactions to defendant's friends, associates, or other third-parties.

It is evident from the record that extensive wasteful dissipation of the parties' marital [*4]residential properties occurred at the hands of defendant. This is exemplified by what happened with the Puerto Rico home. Despite a long-held pattern and practice of defendant managing all finances on behalf of the plaintiff, defendant stopped covering the costs on the home for repairs, upkeep, utilities, taxes, and the alarm system. Following Hurricane Maria in late 2017, when plaintiff continued to remain bedbound in New York by illness, defendant failed to visit the property to assess or attempt to repair any damage. As a direct result of defendant's neglect, it appears that Puerto Rico home is now uninhabitable and may very well be unmarketable.

In addition to the Puerto Rico property, other assets were wastefully dissipated at the hands of defendant, including his business, the parties' retirement accounts, and various other homes and luxury vehicles. Both parties testified that, throughout of the marriage, defendant acted as the sole manager of the parties' finances while plaintiff remained largely ignorant of their status. However, defendant was unable to provide documentation or an adequate explanation for his purported financial downfall or the status of the parties' assets. As a result, the picture of what the parties purchased and what was disposed of during the parties' long pre-marital relationship, their shorter marriage, and the time between the commencement of the divorce and the trial, is completely unclear.

Although defendant testified that he took affirmative steps to liquidate the parties' retirement accounts, their value at the time of liquidation is unknown, as is what ultimately happened to the proceeds of those accounts. The same is true with regards to the cars and boats, many of which were luxury items with a high value, that defendant purchased and/or leased and disposed of during the relationship and after. Absolutely no documentation was provided which would provide even the slightest understanding of their value or what became of the proceeds from their sale.

Perhaps the most problematic asset is defendant's medical billing business, which undeniably grew during the relationship and may have grown after the marriage, but is now, according to defendant, no longer viable. As recently as 2014, it declared profits of $1.5 million and, in 2013, declared profits of no less than $1.7 million. Defendant himself declared $1.5 million in earnings on his personal tax return in 2018, despite his representation that the company filed for bankruptcy in 2016, just months after the filing of this current action. Incredibly, defendant testified that the $1.5 million was merely a "paper trail" and not representative of his actual income. Defendant's attorney stated to the court that this apparent inconsistency could be easily explained by defendant's accountant, who he stated was planning on testifying on behalf of defendant, but neither the accountant nor any other witness was subsequently called by defendant to provide any such explanation. Nor did defendant come anywhere close to offering a credible reason as to why a business that had been spectacularly successful for so long would suddenly become worthless. The only plausible explanations are that either defendant allowed it to happen or that he is concealing its true value.

Before reaching the questions of the value of the marital estate and how it is to be divided, I must first determine what property is properly included in the estate. This means that not only must I consider the question of what property the parties possessed, but I must also deal with the issue of when they possessed it. This is necessary since marital property is generally defined as property acquired during the marriage, with separate property being that acquired prior to the marriage (see Fields v Fields, 15 NY3d 158, 162 [2010]).

In determining what property is marital, I am acutely aware that the parties had a [*5]relatively short marriage preceded by an exceedingly long marriage-like relationship. I am also cognizant of the fact that much of the property in question was acquired, and defendant's medical billing business unquestionably established and operational, well before the date of the actual marriage. Nevertheless, I may have been inclined to look beyond the strictures of the marriage itself to focus instead on what occurred during the premarital relationship, something which I might not be specifically authorized to do under the equitable distribution provisions of the Domestic Relations Law. As it turns out, it was not necessary to do that in this instance. This is because the "law favors the inclusion of property within the marital estate" (LeRoy v LeRoy, 274 AD2d 362 [1st Dept 2000]), with the party asserting that assets are separate rather than marital having the burden of proving that such is indeed the case (see DeJesus v DeJesus, 90 NY2d 643, 652 [1997]); see also Saasto v Saasto, 211 AD2d 708, 709 [2d Dept 1995] ["A court is not bound by a party's own account of his or her finances, and where a party fails to trace the sources of money claimed to be separate property, the court is justified in treating it as marital property"]. Inasmuch as defendant totally failed to sustain that burden, the bulk of either parties' assets, irrespective of when they were acquired, must be considered marital property.

Having concluded that the property acquired by the parties is largely marital — albeit mostly titled in defendant's name and much of its present whereabouts unknown — I must then determine the value of that property. The general rule in New York is that the non-titled spouse seeking an equitable share of marital property has "the burden of proving the asset's value so as to afford the court a sufficient basis upon which to make a distributive award" (Iwahara v Iwahara, 226 AD2d 346, 347 [ 2d Dept 1996]). In accordance with the rule, where a party fails to meet the burden, the trial court has no basis for making a distributive award applicable to that asset (Alper v Alper, 77 AD3d 694[ 2d Dept 2010]). Nevertheless, I would be hard-pressed to inflexibly apply even a well-established rule if it would result in manifest injustice. Although there appears to be no appellate authority on point, the court is guided by a trial court decision from 1993 with its sage and sensible pronouncement that "in applying the rule of law concerning the burden of proof in [a] matrimonial action [where the value of an asset is at issue], the court must examine the nature and magnitude of the burden placed upon the non-titled spouse, and must consider whether the acts of the titled spouse prevent the non-titled spouse from meeting that burden" (Basch v Basch, 210 N.Y.L.J. 109 [Sup Ct, Nassau County 1993]).

Admittedly, I am left with the difficult and uncomfortable task of determining the value of marital assets, including that of defendant's business interests (see Amodio v Amodio, 70 NY2d 5 [1987]) on a trial record that is largely devoid of concrete evidence in that regard and is without any expert financial testimony. If, however, I used the problems determining the value of the marital estate as a basis not to make a distributive award, I would be rewarding defendant's lack of candor, his misconduct, and his abject failure to comply with his discovery obligations. I would also be punishing plaintiff, who is the innocent party here, by depriving him of his right to receive his equitable share of marital property, a result which would be patently unjust. Obviously, when choosing between "difficult and uncomfortable" and "patently unjust," I must opt for the former and make an award, irrespective of how lacking and imprecise the determination I ultimately reach may end up being.

Utilizing what little the record provides — plaintiff's credible testimony as to the parties' history and lifestyle, plaintiff's limited but credible testimony as to the parties' finances, defendant's less than credible testimony as to all matters, along with the limited documentary [*6]evidence — I make the following findings with regards to the value of marital property subject to equitable distribution. First, I find that as of the date of commencement, the parties' nonbusiness assets, including the abandoned Puerto Rico residence titled in plaintiff' name, which I deem to have a present value of $200,000, totaled $1.4 million. Second, I find that as of the date of commencement, the parties' business assets, consisting of defendant's medical billing company, totaled $1.2 million.

The final step in fashioning an award of equitable determination is to determine what percent of the marital property goes to each spouse. Fortunately, this does not require the same conjecture and speculation that was needed here to formulate the value of the marital estate. Although discretionary to a large extent (see Motta v Motta, 145 AD3d 560, 560 [1st Dept 2016] ["The trial court has great flexibility in fashioning an equitable distribution of marital assets "]), the determination must still be guided by the 14 specific factors listed under Domestic Relations Law Section 236B(5)(d).^[FN6] But while the statute requires a court to consider all the factors in making its determination, it does not impose a requirement to engage in a point-by-point catechistic discussion of each and every one of them (see Morille-Hinds v Hinds, 87 AD3d 526, 527 [2d Dept 2011]).

In fashioning the distributive award for each of the parties here, I have considered, as I must, the 14 factors, with attention given to them all, both collectively and individually, but have especially focused on five of them. They are "the income and property of each party at the time of the marriage, and at the time of the commencement of the action" (DRL § 236B[5][d][1]), "the age and health of both parties" (DRL § 236B[5][d][2]), the "direct or indirect contribution made to the acquisition to such marital property by the party not having title, including joint efforts ... and contributions and services as a spouse and homemaker" (DRL § 236B[5][d]7]), the "probable future financial circumstances of each party" (DRL § 236B[5[[d][9]), and, as mentioned previously, the "wasteful dissipation of assets by either spouse" (DRL § 236B[5][d][12].

With due deference given to the statutory factors, and keeping in mind the case law's admonition that the "the division of marital property should be as equal as possible (Morille-Hinds v Hinds, supra at 898)," I find that the value of the non-business marital assets should be divided on a 50/50 basis between the parties. Recognizing that a different standard has long been applied to business assets (see Arvantides v Arvantides, 64 NY2d 1033, 1034 [1985]), but crediting plaintiff for the indirect contributions he made as a spouse and a homemaker towards defendant running his successful medical billing company, I find that the value of the business should be divided, with 15 percent going to plaintiff and the remainder to defendant.

By applying the applicable percentages (50 percent for non-business and 15 percent for business) to the valuations reached earlier ($1.4 million for non-business assets and $1.2 million for the sole business asset), I have arrived at the final distributive award to which plaintiff is entitled: $880,000. Of this amount, an estimated $200,000 will be realized from the sale of the Puerto Rico residence, with the proceeds to be placed into an SNT to be established for plaintiff's [*7]benefit. The remaining $680,000 will be paid by defendant directly into the SNT in the manner set forth at the end of this decision.

B. MAINTENANCE

The same way equitable distribution came with a host of vexing questions — what did the parties own, when did they own it, how much was it worth, and where is it now? — maintenance brings its own set of questions. The essential ones are what did defendant earn historically, what does he earn now, and if he earns less now, why is that so? The trial, unfortunately, did little to answer the questions concerning defendant's income and his earning capacity. Nevertheless, the record establishes that plaintiff is entitled to receive maintenance and defendant is obligated to pay it to him.

"Except where there is a valid agreement with respect to maintenance, the court may order maintenance 'in such amount as justice requires'" (Maddaloni v Maddaloni, 142 AD3d 646, 653 [2d Dept 2016]). "The amount and duration of maintenance is a matter committed to the sound discretion of the trial court and each case must be determined on its unique facts" (Heymann v Heymann, 102 AD3d 832, 834 [2d Dept 2013]). Naturally, that discretion remains subject to the dictates of the Domestic Relations Law. Among other things, the Domestic Relations Law provides that "[a] court shall order the post-divorce maintenance guideline obligation up to the income cap in accordance with [(DRL § 236B [6][c])], unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of [the 15 statutory factors] " (DRL § 236B [6][e][1][a-o]).

The starting point for the maintenance analysis, of course, is determining each spouse's income. Plaintiff's income is clear; he receives approximately $1,000 a month in public assistance benefits. As stated above, defendant's income is anything but clear. The law, however, provides courts with a workable method to determine income for maintenance purposes, even where there is a failure to disclose or an attempt to obfuscate. It is well established that " a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential (Lennox v Weberman, 109 AD3d 703, 703 [1st Dept 2013])."

In determining how much income to impute to defendant, I was unpersuaded by his claims that despite the lavish lifestyle the parties' enjoyed together during their marriage and the large income he realized for years from his medical billing company, he is now basically destitute. His testimony that he lives in a friend's house where he is only responsible for utilities, drives a car borrowed from a friend, and earns $700 every two weeks (Transcript of 11/7/19 at 5) was unsupported by any documentary evidence and is not credible. The same is true for his claims that he is utilizing a recruiting agency and has "reached out to everyone in his rolodex" in his attempts to secure employment commensurate with his skills and training.

It is appropriate to impute income to defendant based upon his demonstrated earning potential (see Culhane v Holt, 28 AD3d 251, 318 [1st Dept 2006]). His extensive volunteer work, participation on numerous boards, and experience running a successful company for decades evidences that what he purports to be his current financial situation does not reflect his probable future financial circumstances or earning potential. At the same time, I recognize that defendant's age and changes in the industry may very well have resulted in his earning capacity being diminished from what it was. And although I did not accept defendant's testimony being at [*8]all credible as concerns the supposed "disappearance" of his residential property and other assets, I am willing to accept that he was not being totally untruthful when he told me that he can no longer earn what he did in the past. As a result, I find it appropriate to impute to defendant an annual income in the amount of $110,000.

Because the annual income of both parties (plaintiff's $12,000 + defendant's $110,000 = $122,000) is less than the current statutory cap of $192,000, there is no need for me to engage in an analysis of the factors that would prompt utilizing income in excess of the cap. Nor does the consideration of any of the factors warrant a downward deviation from the presumptively correct amount. Utilizing the mandatory statutory formula, I calculate defendant's monthly maintenance obligation to be $2,550.

The next question with regards to maintenance is for what length of time the $2,250 payments should be paid. DRL § 236B[6][f] provides an "advisory schedule" to be utilized in determining the duration of post-divorce maintenance. The schedule is based on the length of the marriage. For a marriage "up to and including 15 years," the recommended duration is "15%-30%" of the length of the marriage. The section further provides that " whether or not the court utilizes the advisory schedule, it shall consider the factors listed in [DRL § 236B(6)(e)]."

The parties were married for 59 months, or one month short of five years, prior to the commencement of the action. But it bears repeating that while the marriage itself was short, the relationship, in which defendant actively fostered plaintiff's economic dependence upon him, was decades long. Thus, the durational recommendation provided for in the statute is clearly inappropriate to the situation. Instead, looking to such factors as DRL § 236B[6][e][1][a] ("the age and health of the parties"); DRL § 236B[6][e][1][b] ("the present or future earning capacity of the parties, including a history of limited participation in the workforce"); and especially DRL § 236B[6][e][1][f] ("the existence and duration of a pre-marital joint household"), I find that the appropriate duration for the payment of maintenance to plaintiff by defendant to be 10 years from September 1, 2020.

The last question concerns the form in which maintenance is to be paid. Plaintiff, citing defendant's failure to pay temporary maintenance, requests that defendant be required to make his maintenance payments in one lump sum as opposed to monthly installments. Plaintiff does not cite any statutory or case law permitting me to order this, and I am unaware of anything that would authorize me to do so. As I will explain further, I do, however, find that the special circumstances present in this matter permit me to require defendant to make his monthly payments in a specified manner.

C. TEMPORARY MAINTENANCE ARREARS

"The entry of judgment for maintenance arrears against a party in default is mandatory unless the defaulting party shows good cause for his or her failure to apply for relief from a judgment or order directing such payment, prior to the accrual of such arrears" (Eschemuller v Eschemuller, 167 AD3d 983, 985 [2d Dept 2018]). Here, the evidence supports the finding that defendant is the defaulting party and has failed to show good cause for failure to apply for relief from the pendente lite order that I issued requiring him to pay temporary maintenance. The evidence also fails to support defendant's claim of an inability to pay. Based on the record, as augmented by the parties' post-trial submissions, I find that the arrears due plaintiff through this month as and for temporary maintenance total $21,250. Plaintiff is thus entitled to a money judgment against defendant for that sum.

D. IMPLEMENTATION OF THE AWARDS AND THE SNT

Every matrimonial case is difficult and problematic in its own way, and this case, as demonstrated, has posed its own set of unique problems. One further problem is that even if plaintiff receives the large sums he is entitled to as maintenance and equitable distribution, he will still need Medicaid to cover his necessary, complex, and astronomically expensive medical treatment. Simply stated, it would be a pyric victory indeed for plaintiff to receive what he has been awarded in this decision only to lose the irreplaceable health care coverage he needs to stay alive. For this reason, his attorneys propose establishing a Special Needs Trust, which is a legal trust arrangement for a disabled individual that allows that person to receive funds for specified purposes while remaining eligible to receive necessary government benefits (see 42 USC §1396p [d][4][A]). In order to facilitate this essential, and highly laudable, task that plaintiff's attorneys, Sanctuary For Families Legal Services, assisted by the LGBT Bar Association of Greater New York, seek to perform on their client's behalf, I must make some somewhat unusual directives with the way maintenance and equitable distribution will be paid.

Because plaintiff's attorneys represent in their post-trial submission that they will need another six months to set up the SNT, I will direct defendant, commencing September 1, 2020, to pay the $2,550 maintenance due each month to plaintiff to Sanctuary for Families Legal Services. They, in turn, will hold the funds until they can be placed in the SNT, or, at the instruction of plaintiff, release certain sums to him as needed. Once the SNT is operational, defendant will pay the monthly maintenance directly to it. As for the distributive award, defendant will pay the first half of the award ($340,000) to the SNT on or before March 1, 2021, and the second half ($340,000) on or before September 1, 2021. Plaintiff's counsel will be entrusted to ensure that any funds realized from the sale of the Puerto Rico home or from the judgment awarded for temporary maintenance arrears are similarly placed in the SNT or otherwise dispersed to plaintiff as circumstances dictate.

I began this decision by stating that this case presented a sad and disturbing history of an abusive relationship fostering economic dependency. The hope is that the relief that I have granted plaintiff here will enable him to regain his independence, enjoy at least a semblance of the material comforts he had for the many years he was with defendant, and maintain the safety net of services and benefits that allow him to deal with his debilitating medical conditions.

This decision also resolves all issues remaining in the divorce proceeding, the parties having previously stipulated to the divorce being granted to plaintiff on the ground of irretrievable breakdown of the marriage. Accordingly, plaintiff is directed to settle the Judgment of Divorce on notice within 60 days of today's date.