Let's Stay Together- Should I Contest the Divorce

Posted by Daniel Clement on July 31, 2006

You have been served with a summons in connection with a divorce action -what do you do?

 You must immediately decide whether you will be contesting the divorce. In doing so, you will have to determine whether the marriage is dead, whether the marriage is salvageable and to attempt reconciliation or whether you will need to contest the divorce for other reasons. 

Reconciliation requires cooperation. If you spouse does not want to reconcile, there may be nothing you can do to salvage the marriage. You can contest the divorce, but even if you prevail and the divorce is denied, you cannot force your spouse to live with you or to revive the marital relationship. You will be married in name and legal effect only.

You should be acutely aware that by the time you have been served with the divorce papers, your spouse has, in all likelihood, consulted with an attorney, paid a retainer, and filed a summons seeking a divorce in court. You may surmise that this person does not really want to be with you.  

By contesting a divorce, you force your spouse to prove, at trial, each and every element of their grounds for divorce. That is they must prove all of the jurisdictional requirements (the reason the court has the authority to hear the case and render a judgment) and all of the elements for grounds for divorce (i.e., adultery, cruel and inhuman treatment, abandonment for a year or an imprisonment). So, for instance, if the divorce is based upon the grounds of abandonment, you spouse must prove that for a year before he/she commenced the divorce, without excuse or justification, you continuously abandoned him/her.  

If you agree that the marriage is over, but there are other unresolved issues relating to the children of the marriage, visitation, child support, equitable distribution of property, spousal maintenance or any other issue, you should contest the divorce.  The court can bifurcate the trial. In other words, the court can separate the issues that the parties agree on, say, for instance, to divorce, but address only the issues in dispute, generally the economic issues or the issues related to the care and custody of the children.   No divorce will be granted until all the issues have been resolved by trial or agreement.  

Suppose, however, that you agree the marriage is over, but not for the reasons alleged by your spouse. For example, the husband alleges he was abandoned by the wife. In reality, the husband not only abandoned the Wife, but moved in with another woman, whose child he fathered. The Wife, in this example, could counterclaim that the Husband abandoned the Wife and also committed adultery. At trial, each party would have the opportunity to prove his or her case in order to obtain a divorce. If either party sustains his/her burden of proof, a divorce will be granted. Conversely, if neither proves his/her case, both will be denied a divorce.

In making the decision whether to contest the divorce, the party should carefully consider all of the issues to be resolved in connection the divorce, the available options, the likelihood of success on the merits, and the costs involved in defending the action. 

In the end, in deciding to contest a divorce on the merits, you must answer the fundamental question, do you want to continue a martial relationship, with someone who does not want to be with you.   A successful defense of an action for divorce, does not rekindle the marital flam

Tips To Reduce Legal Fees

Posted by Daniel Clement on July 19, 2006

Clients view retaining attorneys as a necessary evil. They know they should retain one, but they hate to pay fees. Most matrimonial and family law attorneys are retained on an hourly basis, meaning they bill at a set rate on a time basis. Waste or squander your attorney’s time, and you waste your money.

A client, looking to minimize his/her legal fees can do a number of things to minimize his legal fees:

1.        When retaining an attorney, be prepared to supply relevant financial documents, including bank and financial statements, tax returns, mortgage applications, loan documents and credit card bills.

2.        Do not fight over assets that are of limited value. As I have written before, it simply does not make sense to litigate and run up huge legal bills that will dwarf the value of the assets to be acquired. 

3.        Pick your battles and remember moral victories cost money. You may want to be proven right or vindicated on some issue, but if it does not advance your case, you may want to conserve your resources.

4.        Recognize that when you communicate with your attorney, the meter is running. If you call your attorney, situate yourself in a room where you will not be interrupted and can freely talk. Do not put take other telephone calls while speaking with your attorney.   Although you may are on another line, the attorney is on hold and the meter continues to run.  

5.        Do not force the attorney to practice defensively.   If the attorney feels he/she has to put everything in writing to you, or that every communication with you must be confirmed in writing, you are going to increase your legal fees.

6.         Be candid with your attorney. In litigation, lies or falsehoods are always discovered.

7.        Don’t litigate only to be vindictive. A strategy which is simply, “If I can’t have it, neither can you” results in only large legal fees.

 In the end, if you wish to minimize your legal expense, be prepared, professional, reasonable and candid; then hope that your spouse will reciprocate,

Canadian Same-Sex Marriages Not Valid in New York

Posted by Daniel Clement on July 17, 2006

It took only a week for the  reverberations to begin  from last week’s affirmance by the Court of Appeals of New York’s ban on same sex marriages. Last week, in the case Funderburke v. New York State Department of Civil Service, a Nassau County judge granted the State summary judgment, dismissing the case of a former employee, who sought health benefits for his same-sex partner.

Mr. Funderburke had been with his partner since 1965 and, in 2004, married him, in Canada, which recognizes same-sex marriages.  Fundeburke requested spousal benefits for  his partnet but the school district, which employed Funderburke, denied his request because it declined to recognize same sex marriages.  

In dismissing the case, the Judge stated:

In deciding this case, this Court is constrained to follow the recent holding of the Court of Appeals in Hernandez v. Robles  . . . While the Court of Appeals in that case did not directly address the issue of whether New York should recognize same sex marriages performed in foreign jurisdictions, the Court’s ruling is instructive on the definition of marriage. The Court of Appeals held that there are rational grounds for limiting the definition of marriage to opposite sex couples and that any expansion of the traditional definition of marriage should come from the New York State Legislature.

The Court then concluded that Funderburke  though married in Canadian was not married under New York law. Therefore, Funderburke’s partner was not, the Court said, eligible to spousal health benefits.

New York style divorce litigation reaps explosive results

Posted by Daniel Clement on July 12, 2006

In an aptly titled article Real Estate and Rubble: When Marriages Go Awry , the New York  Times  stated:

 “. . .[I]n New York, lawyers say, while blowing up a building is extreme, vindictiveness is not unusual. Divorce lawyers said they had seen pets killed and wives given theater tickets so their husbands could put their possessions on the street.”

“Some say such spiraling levels of anger, rage and eventually violence are a function of New York’s cumbersome divorce laws, which require one spouse to find fault with the other and thus encourage lawyers to keep the fight going as long as possible, spousal tensions rising all along.”

The Times continued: “If Las Vegas is the capital of instant divorce, New York City is the worldwide capital of unfathomably big awards and ferocious litigation. Think of Donald and Ivana Trump, Rudolph W. Giuliani and Donna Hanover, Jocelyne and Alec Wildenstein, Ronald O. Perelman and Patricia Duff”

The absence is of a true no-fault divorce is more than problematic. In the best cases, the absence of a no-fault divorce requires a party to perjure him/herself to state grounds to obtain a divorce.  In the worst cases, it gives license to the spouse against whom a divorce is sought to extort money and other concessions from spouse seeking the divorce. Opposition to the grounds for divorce is often withdrawn after the party seeking divorce gives in on some unrelated issue. 

In cases where a party is unable or unwilling make some concession, the parties must, as the Times correctly points out, litigate. As the litigation progresses and the accusations and vitriol increase, it is only natural that the parties become more desperate and more despondent. 

Dr. Bartha’s actions are inexcusable. But it is foreseeable that a person suffering from mental illness, thrust in a system that rewards conflict and confrontation, could, when faced with certain defeat, violently lash out with destructive force. Indeed, Dr. Bartha’s former lawyer portrays his client as being “ hounded by aggressive lawyers who stripped him of his dignity and everything he owned, taking his beloved house when he was too depressed to defend himself.”

Will adopting a no-fault divorce law end all destructive conduct in divorces? No. But a more liberal law will certainly ratchet down the acrimony that leads to these cruel and violent acts.

Burning down the house or If I can't have it, then neither can you.

Posted by Daniel Clement on July 12, 2006

In a frightening twist to a hotly disputed divorce in New York State, Dr. Nicholas Bartha, blew up his beloved town house on East 62nd  Street.

 In prior, postings, I had written of litigants who, no pun intended, followed scorched earth tactics.   Obviously, no one can foresee a party’s irrational behavior or violent reaction to an adverse decision.   

Excerpted below is the portion of the Appellate Division’s decision, which, perhaps, precipitated Dr. Bartha’s descent into madness, culminating in his violent suicide attempt

Continue Reading

Broken Engagement- Who Keeps the Ring

Posted by Daniel Clement on July 10, 2006

Both New York tabloids picked up this weekend on a widely reported case involving a broken engagement and the return of an engagement ring. (Finance Hits Rock Bottom and Fiance is “Gift” Rapped.)  For purposes of complete disclosure, I represented the husband-to-be

In this case, the husband-to-be sought to recover a large diamond engagement ring given to his ex-finance, who broke off the engagement. The woman was allowed to keep the valuable ring. 

An engagement ring is a gift made in contemplation of marriage.   That is, the gift is conditioned upon the marriage actually taking place.   If the marriage takes place, the condition is satisfied, and the woman is permitted to keep the ring.   Conversely, if the marriage does not occur, the would-be-bride must return the ring.  

So why was the woman, who broke off the engagement, allowed to retain the engagement ring? Because, there is an exception to the general rule: if a man is already married, he cannot legally contract to wed.  The condition for giving the ring cannot be satisfied. Therefore, the woman is entitled to retain the purported gift made in contemplation of marriage even if the parties never wed.

The recent case was interesting because the man actually had been granted a divorce in Massachusetts, one month before he gave his fiancee the engagement ring. However, unlike New York, where the parties are free to re-marry as soon as the judgment of divorce is entered, in Massachusetts, the divorce does not become absolute until the passage of some time.

Although the man had successfully done everything that had to be done in order to obtain a divorce, that the divorce had been granted and that that all that was required for the divorce to become absolute was the passage of time, the Court ruled that the man was impaired from remarrying. Therefore, he was not entitled to the return of his ring. 

The moral- Do not become engaged unless and until you are legally divorced