New York Divorce Report - New York's Divorce and Family Law Blog

Time is money, at least when figuring out which parent is responsible for paying child support in New York.  As a result, a wealthy parent, who has custody of the children a majority of the time, does not have to pay child support to the other poorer parent.

In the case of Rubin v. Della Sella, though the father was granted custody of a child 56% of the time and the wife 44%, the trial court opined that the mother was not precluded from having the father pay child support.  The Appellate Division reversed the trial court’s decision.

According to the Appellate Court, New York’s child support statute makes it clear that despite any economic disparity between parents, only the "custodial parent," defined as the parent who has the child for the majority of the year, is entitled to receive child support.

In order to identify which parent has the child the majority of the time, the test is to simply count the number of overnights each parent spends with the child.  Since the father had the child 56% of the time, the parties did not have equal time with the child;  the father was the custodial parent and did not have to pay the mother child support.

Income has been the decisive factor in cases where the parties have the children an “equal” amount of time.  It has long been the common law rule that the parent with the higher income was deemed to be the noncustodial parent for child support purposes.  

Now, time will tell if parents will now be coming all settlement negotiations with a running tally of their overnights with no one willing to take less than the majority of the overnights.     

Bob was always claiming poverty during his divorce.  In order to cut his expenses, without a word to me or his wife, he cancelled the collision insurance on his wife’s car.    Of course, Bob had no luck - as soon as the insurance was cancelled, his wife had an accident.

Everyone, including me, tells you what you should do as you prepare for divorce.    Seldom are you told about the things that you should not do until after you have done something wrong when hear something like: “I wish you had told me you were going to do that.   I would have advised you not to.”

Ben Stevens and Dick Price have assembled a great list of  10 Things Not to Do When Starting a Divorce Case to which I add my thoughts.

1.   Don’t destroy records, including emails and other electronic information. 

   
Papers trails continue to exist even if you destroy your copies.   Banks, financial institutions and even social networks keep records.    If you posted something that is unfavorable, chances are spouse has a screenshot or a printout of it already.  Destroying your copies of the records just makes it harder for you to get your hands on them.

2.  Don’t clean out all the bank accounts. 

 
Attempting to cut off your spouse of financially by closing out  the bank accounts only ensures you will be in court sooner rather than later.  As soon court hears that you emptied the accounts there will be an order restraining you from you from using the funds

3.  Don’t hide assets.   

See numbers 1 and 2.  

4.  Don’t cancel insurance, change beneficiary designations or run up debts.

In New York, there are specific prohibitions from doing so.  Regardless, as illustrated in the above example, unilaterally making changes often backfires and ends up exposing you to greater liability and expense.  

5. Don’t blow up and get angry with your spouse or make threats.  

Aggressive behavior only leads to more conflict.  Anger and threats don’t lead to compromise and reasonableness.  Fighting costs more money.

6.  Don’t hire the meanest lawyer in town.

 
Hiring an overly aggressive and litigious attorney only ensures that you will spend a lot of money contesting the divorce and depleting the marital estate.   Impoverishing your spouse through needless litigation makes your attorney, not you, richer.   The cost is not purely economic; your aggression will likely cause an aggressive response.

7.  Don’t try to represent yourself.  

 
Divorce in New York is complicated.   There is no “one size fits all” divorce.  If you are emotionally involved it is impossible to be mindful of strategy or to objectively set realistic goals.   It is true, “Only a fool hires himself for an attorney.”     Failing to retain an attorney can cost you dearly if you give up an asset or a right that you didn’t need to.

8.  Don’t lie to your lawyer. 

 
Facts that are damaging or embarrassing to you are going to come out in the divorce.  It is certainly better that I hear them from you in the privacy of my office then in court.

9.  Don’t lie to the judge.   

If the judge finds that you lied or you are not credible on one issue, he/she may be inclined to not to believe anything you say.    Not only will use lose, you may face criminal penalties for perjury.

10. Don’t engage the children in the divorce. 

Your children are not parties to the divorce; keep them out of it.   Children should not be brought into the discussions about the divorce and should never be allowed to read any of the papers filed in court.   Your children are not divorcing your spouse- you are.  They should be encouraged to love both of their parents.

In short, if you are in doubt about doing something, you probably should not do it, at least, until you speak with your attorney. 

With the United States Supreme Court determining the fate of the Defense of Marriage Act (DOMA), same sex married couples should file protective claims for federal tax refunds with the Internal Revenue Service now.  

As I earlier discussed here,

If same sex marriage is recognized by the federal government, same sex couples may be eligible to file an amended return to change their filing status.   The problem is, however, that taxpayers are only permitted to amend their returns for the prior three tax years or two years since paying the tax.     For any tax returns filed outside of the limitation period, the tax payers may just be out of luck.              

The deadline for filing protective claims for 2009 refunds, the deadline is April 15, 2013. 

After a divorce is filed it is not uncommon for one of the parties to claim that they are no longer self supporting and have suddenly become indigent.  It is a much rarer issue when one of the parties suddenly becomes rich. 

Two recent cases illustrate what happens when one party wins the lottery.  Prior awards of maintenance, child support and even attorneys’ fees have to be re-evaluated. 

In New York, after receiving an award of temporary maintenance, pendente lite attorneys’ fees and a disproportionate share of the statutory add-ons to child support, the wife/mother “discovered” she had won a lump sum payment of $623,000 in the lottery.    As a result of the sudden change in circumstances, the husband moved to vacate the court’s prior support order. 

As reported in Divorce: New York, the sizable lottery prize “was a change of circumstances warranting modification and vacatur of the order for temporary maintenance.” Therefore, the court terminated the maintenance payments, retroactively.  The court gave the husband a credit for all payments made after he made his motion.

In addition, since the wife was no longer the “less monied” spouse, the prior counsel fee award to the wife was vacated.    In fact, had the husband made a proper request for fees (his motion was deficient), the court may have ordered the wife to pay counsel fees to the husband.

Though New York’s child support law provides that the Court may allocate a proportion of non recurring payments from extraordinary sources, including lottery winnings, to child support, the Court noted that it  “has discretion to exclude non-recurring payments from a party's gross income for child support purposes.”  Instead of reducing the basic child support payment, the court reduced the father’s portion of the statutory add-ons from 77% to 50%.

The Huffington Post details another case where the winner of the $338,000,000 power ball jackpot was in arrears in paying child support.    By law, the child support arrears will be satisfied before the lottery winnings are paid out. 

Realistically, the $29,000 in arrears will be a drop in the bucket considering the lump sum prize payout will be $152,000,000 after taxes.  

Expect the child’s mother to seek an upward modification based upon the winner’s drastically changed circumstances

So, your fiancée insisted that you sign a pre-nuptial agreement before you wed.  Even though you did not particularly agree with everything in the agreement, you signed it, thinking you will just contest it if you get divorced.  Now, with a divorce pending, you want to invalidate the pre-nuptial agreement.   Guess what - you may be out of luck!

New York has a very strong public policy of holding parties to their contractual arrangements.   There is a heavy presumption that a deliberately prepared and executed written agreement manifests the true intention of the parties.    An agreement between spouses or prospective spouses may be invalidated only if the party challenging the agreement sustains the burden of proof, demonstrating that the agreement was the product of fraud, duress, or it was improperly executed.

To prove coercion or duress, you would have to establish that you were somehow pressured into signing the agreement.  The threat that “I will not marry you unless you sign this agreement” is not duress.  If both of the parties were independently represented by counsel and the agreement was the product of arm’s length negotiations, it may be difficult to prove that the pre- nuptial agreement was procured by duress.

At the time agreement is negotiated and signed, the parties should disclose their assets, liabilities, and income. Unless, you can prove, for instance, that your spouse deliberately misrepresented the extent of his assets to induce your agreement, it is unlikely you will be able to establish fraud. 

Most agreements provide that the parties are only relying on the representations contained in the agreement, more importantly, that they are not relying on promises or representations not contained in the pre-nuptial agreement.   That is precisely why the decision reported in the New York Post, is an anomaly.  

In this unique New York divorce case, the wife successfully challenged the pre-nup because:

He told me he would rip [the pre-nup] up as soon as we had kids,” Elizabeth, who has since had twin sons and a daughter, told The Post at her Old Brookville mansion.

“But he never did.

Shine details how the wife was coerced her into signing the pre-nup.

She claims he dropped the premarital bomb four days before their wedding day in 1998, leaving her with little time for a contractual dispute. She also told the court the agreement included promises her ex never intended to keep. Among those promises, she said, was that he would add her name to the deed of their Old Brookville home,

The New York Appellate Division found that the issue of the husband’s fraudulent misrepresentations was a question of credibility and declared that the wife’s testimony was "credible," "convincing," "unequivocal and consistent with "additional corroborative evidence," and that any "inconsistencies" in her testimony related to "insignificant" matters. By contrast, the defendant's "credibility was suspect," due in part, to his "patent evasiveness." 

Even, the wife’s attorney concedes that “The decision “is unprecedented, vacating a pre-nup on the basis of a verbal promise,” even though a clause in the contract says there were no verbal promises.” 

The bottom line, cases where the prenuptial agreement are invalidated are rare.   You cannot and should not count on a court to rescue you from the terms of a bad agreement. If you do not understand the agreement or do not agree with the contractual terms, do not sign it.   If you are being promised something that is not in the agreement, insist that it be included in the agreement.   If your future spouse tells you it is not necessary to put the “promise” in writing, well, maybe you should go into the marriage with your eyes wide open.