New York Divorce and Family Law Blog : New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

Remember the YouTube spectacle of Tricia Walsh Smith who publicly humiliated her husband and, ultimately, herself.

In the age of social networking, new rules of apply to couples going through divorce.
The rules, as compiled by Time, can succinctly be boiled to one- “Discretion is the better of valor.”

1. Don’t brag.

Your claims of poverty will ring hollow if you brag on Facebook about your purchases of expensive items or post photographs of lavish vacations.

2. Keep the party off-line

Sure you may want to let off some steam, but if you are engaged in a custody fight, the pictures of you holding a bong in one hand and a half empty bottle of “Jack” in the other are not going to win you points with the judge. They probably are not going to be too helpful when lecturing your kids about sobriety or on your next job interview.

3. Guilt by association.

You are who you hang out with. See Rule No 2.

4. Keep the details of the divorce private.

Don’t fuel the fire with comments and criticisms on the internet. No one likes their spouse’s divorce attorney or the judge after an unfavorable ruling. But remember, the judge is going to make many rulings in the course of a case- some you will win, others you will lose. Do you really want the judge to rule on your case after you publicly criticized him or her?

5. Don’t Defriend.

As Time points out, unless it is high conflict, “Don't "defriend" in-laws or your ex's friends right away. People need time to adjust.”
 

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There are few certainties in life. However, one of life’s certainties is that all marriages will end, whether by death or divorce.

At the end of marriage, whether by divorce or death, disputes over money and the disposition of marital assets may be inevitable. However, a pre-nuptial agreement can help lessen the potential for conflict by clearing identifying the parties separate property and defining the parties’ rights to the marital property.

A recent article illustrated why a Pre-Nup may be a smart money move. 

1. Why are pre-nuptial agreements beneficial?

"One of the common reasons to get a pre-nup is to protect the interests of children from a prior marriage. A sizable portion of assets (called the elective share) may automatically go to a spouse upon death in most states, but this can be avoided by using a pre-nup."

This elective share can be waived in a pre-nup. This is an important consideration, particularly where there are children from a prior marriage.

"Another scenario when a pre-nup makes sense is when there's a significant disparity in wealth. It's also worth considering if you or your spouse-to-be owns a small business or a stake in a family business; a pre-nup can ensure ownership isn't contested in a divorce."

2. Cost

While a pre-nup may be expensive to draw up, the cost of litigating a contested divorce is even greater.

3. What should a pre-nuptial agreement include?

The main purpose of a premarital agreement is sort out who owns what in the event of a divorce.
The agreement may not only define what is a person’s separate property, but it will also specify what assets or debts will be joint or marital and direct how they will be split in the event of divorce.

The agreement can also direct if, and how, alimony or spousal maintenance will be paid.
 

Some agreements even go as far as to provide how household expenses will be paid during the marriage.

It is important to note that the agreement cannot be procured by fraud, coercion or duress and the terms of the agreement cannot be unconscionable.  Crying to the court that “I only signed the agreement because he would not marry me otherwise” is not duress.
 

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Much has ado has been made of the pilots being sued by Continental Airlines because they divorced in order to get partial distributions of their pensions. As reported in Freakonomics:

Continental Airlines is suing nine of its pilots, reports ABC News, claiming they faked divorces in order to draw down their pension funds before retirement. The airline became suspicious when some of the couples continued living together and all nine couples eventually reunited. Continental believes the pilots became worried about the safety of their pension funds, especially after seeing what’s happening at other airlines.

The airline claims that the divorces were shams. The couples all continued to live together and most did not even tell their friends and family about the divorces.

On the other hand, the parties were legally divorced. By getting divorced, even temporarily, they lost the rights afforded married couples, like for instance, the right to continued health coverage. If their tax year ended while they were divorced, the parties could not file joint tax returns.

In fact, the Continental Airline employees gambled that after making generous settlements, their spouses would re-marry them. Indeed, the parties would be hard-pressed to complain that the divorce settlement should be set aside because it was procured by their joint “fraud.”

Many marriage and divorce decisions are economically motivated. Some couples wed to obtain healthcare coverage. Others refrain from marriage to protect their social security status. Still others divorce as part of an elder care plan.

What these Continental employees did was lawful; the employer should not have the right to question the legitimacy of the employees’ marriage or divorce.
 

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In case that seems to be splitting hairs, a judge ruled that emails culled by a wife from her husband’s on-line account did not constitute eavesdropping and were, therefore, admissible at trial.

Had the emails been intercepted while “in transit” to the husband, the wife would have guilty of eavesdropping under Penal Law Sec. 250.00. The law prevents individuals from intercepting a communication, like an email, going from one person to another.

In the case, Gurevich v. Gurveich, (subscription required) the wife had her husband’s email account passwords, and accessed his account. By doing so she was able to obtain emails evidencing a scheme to hide his income. Justice Sunshine ruled that the emails were admissible because the emails were not “in transit” when they were read by the wife-they were already in the husband’s account.

The moral of the story, if you do not want your email communication to be used against you in a divorce, don’t give your spouse your passwords or access to your account. As part of your divorce preparation, change your passwords.
 

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The Court of Appeals, New York’s highest court announced in a pair of cases that marital funds which were used to pay the separate obligations of one of the parties during the marriage could not be recouped in the divorce. This is a far reaching decision because, for instance, a second wife cannot now recover from her husband marital funds used to pay his first wife spousal maintenance or child support.

In short, the divorce court should only consider the assets and liabilities existing at the time of the divorce.

The Court in Mahoney-Buntzman v. Buntzman declared that:

Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.

The Court recognized that if a trial court were to scrutinize every transaction during the marriage, the result would be a cumbersome review by a court, forced to review the reasonableness of every expenditure, measuring the benefit to each of the parties. Instead, the Court declared that “The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected.”

This same conclusion was reached in Johnson v. Chapin, decided the same day.

In reaching this conclusion, the Court noted that:

There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse's separate property . . .Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a "wasteful dissipation of assets" (DRL 236 [B][5][d][11]) by his or her expenditures provides protection.

In other words, questionable or wasteful expenditures may be examined, child support and maintenance payments may not.

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I was asked the following question on the Law Guru website

My wife and I are having problems. We are proposing a temp. separation. Things are getting heated, with demands and threats... ''If I don't do as she wishes or says'' she will call 911. I avoid her as much as possible, most of the threats are over the phone. We also have a 5yo child. I don't know what to do. Do I move out per her demands and face abandonment, do I call 911 first??

 If your spouse commits or even threatens to commit an act of violence the police should be immediately summoned. When there has been an act of domestic violence and the police forced to respond, they have no discretion and will make an arrest. 

In cases where each of the parties accuses the other of domestic violence, both parties could find themselves under arrest. The police will arrest both parties and let the court sort out the facts and determine who is the violent offender. When there is an arrest, an order of protection is issued.

In cases where there has been no actual violence, but your spouse still threatens to call 911, it is best to simply leave the home. It is simply too dangerous to remain under the same roof with someone willing to make false accusations of domestic violence. From my professional experience, these threats are carried out. Fights are provoked and the police are called. 

If you are arrested an order of protection will be issued and you will be expelled from the marital home.  As a result, you may have limited access to you children and you unable to retrieve your clothing and other personal property unless escorted by a police officer. 

Given that your personal liberty is a stake, there is no downside to leaving the marital home given the threats.

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It was been an interesting week in family law practice, which I thought I note before taking a few days off with my family . 

In the same week Governor Paterson announced that he was introducing legislation to recognize same sex marriage, a couple decisions involving the custody rights of same sex marriages were announced.  

In the first, Debra H. v. Janice R., the Appellate Division, First Department, held that the same sex partner of a woman who gave birth did not have standing to assert parental rights after the parties broke up.   The Court ruled that although Debra H., the non biological parent,

 [S]erved as a loving and caring parental figure during the 2 ½ years of the child’s life, she never legally adopted the child. 

Based upon this reasoning, the court held that a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law §70.  

 In another case, a woman whose donated egg was implanted in her same-sex partner was permitted to adopt the resulting child. The parties were lawfully wed in Holland.  

  This case presented the novel issue whether a party, who was not legally married to the child’s mother at the time of conception, but who is genetically the mother can legally adopt the child. 

 In Matter of Sebastian, the Surrogate granted the petition, even though alternatives to adoption may have been available.   Two viable alternatives were obtaining an order of filiation or being listed as a parent on the child’s birth certificate. 

 The parties sought an adoption because they felt only an order of adoption would ensure that all the states and the federal government would recognize the adoptive mother as the child’s parent.  

 The Court specifically noted that

 Although it is true that an adoption should be unnecessary because Sebastian was born to parents who marriage was legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the United States.

 These cases further highlight complex child custody issues faced by same sex couples in the absence of legally recognized marriage.

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As I predicted in this blog, same sex divorce has come to New York. A Supreme Court judge in Broome County has granted a same-sex Binghamton couple a divorce.

As pointed out at Pressconnect.com, this divorce is a bit ironic.

New York doesn't allow same-sex marriages, but state Justice Molly R. Fitzgerald allowed Lauren Wells-Weiss to divorce her partner, Shari Weiss. The two married Aug. 13, 2004, in Toronto, after a private religious ceremony before family and friends in Ithaca in 2001.

The case is paradoxical, said both women's attorneys, because in their opinion the judge recognized the lesbian couple was married, although New York state law doesn't allow same-sex marriages.

New York will recognize as valid, marriages which were legal where they were solemnized, even if they would not valid if the marriage took place in New York.

Although New York will not allow same sex couples to wed, in the past year, there has been a line of cases which have recognized, as valid, same sex marriages lawfully performed in Canada and Massachusetts. In these cases, courts have extended to same sex couples legal rights previously only available to lawfully wed couples.

My only disappointment is that I had hoped that one of the same sex divorce cases I am presently working on would be New York’s first. Perhaps I will have to take consolation in representing litigants in the first New York City same-sex divorce.

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One of the most recurring question I am asked  from people considering divorce is:" Am I responsible for my spouse's debts and liabilitie?"     Most recently, i  answered that very question, on Linked In.

Question- I'm about to break up with my wife. While we are separated I do not want to be responsible for debts she may incur. Will I be responsible for her debts?

Answer - You are really asking two distinct questions about debts. The first questions how debts will apportioned between you and your spouse as part of a divorce; the second question asks what is your responsibility for debts to your creditors.

All property acquired during the marriage may be equitably distributed. That means, both the assets and liabilities will be equitably divided between you and you wife. If your wife ran up credit card debt in anticipation of the divorce or wasted marital assets, that will addressed in the distribution of the remaining marital property.

Whatever agreement you and your wife reach about the responsibility for the marital debts, it is not binding on your creditors. Regardless of how you and your wife apportion the debts, your creditors can enforce their contracts against whoever is principally liable. If the obligation is in joint names, the creditor can attempt to collect from either or both of you.

So, for instance, if you have a joint credit card or your wife runs up debt on your charge card, even if your wife agrees to pay the debt for you, the credit card issuer could look to you to make payments.
 

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