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

The very week that the New Jersey Supreme Court forced the state legislature to address the issue of same sex marriage, a New York court rendered a decision which highlights the differences in the law when same sex and heterosexual couples split-up. 

Indeed, “divorcing” same-sex couples are not entitled to equitable distribution. Instead, those couples terminating a relationship that was not recognized as a legal marriage (which also includes heterosexual, but unwed couples), need to explore alternate theories for dividing their jointly acquired assets.

The case of Cytron v. Malinowitz, involved the break-up of a thirteen year domestic partnership. During this long term relationship, the parties acquired a home and accrued valuable retirement accounts, to which both parties were making claims of entitlement.     Unquestionably, had the parties been a legally wedded couple, all of the property acquired during the marriage would have been subject to equitable distribution. 

Since the domestic partners are not married, the Court, by necessity could not equitably distribute the assets acquired during the relationship.    Instead, the Court applied partnership law to distribute the proceeds of the home the domestic partners owned as joint tenants. Each of the litigants was entitled to the return of their respective contribution to the home purchase. The remaining equity was split equally between the parties.

Citing the recent Court of Appeals case of Hernandez v. Robles, which denied same sex couples the rights of heterosexual married couples, the court declined to “distribute” the portions of the retirement account accumulated during the relationship. 

Since the retirement account could not be subject to equitable distribution, one party sought to impose a constructive trust on the asset. In short, a constructive trust is a devise imposed by a court “whenever necessary to satisfy the demand of justice. . . A constructive trust may be imposed in favor of one who transfers property in reliance of a promise originating in a confidential relationship, where the transfer results in the unjust enrichment of the other.” 

In Cytron, though the trial court found there was a relationship of trust between the parties, it failed to find that there was any representation to share in the pension assets.   Therefore, in the absence of an agreement, the pension assets were not distributable. Had this been a legally married couple, the pension assets would, as a matter of law, be a marital asset and would be subject to the claims of the non-titled spouse. 

As a footnote to the issue of same sex marriage, any expansion of the right to wed would, by necessity, have a corresponding effect on divorce and distribution of “marital property.”  

There has been much ado in the tabloids this week about the allegations of domestic violence by Paul McCartney against Heather Mills. So I wondered, what relevance would these allegations have if this case was being heard in New York?

 In New York, because only the parties, their respective attorneys and the court have access to the papers filed in court, the press would not have access to court papers.   So, unless one of the parties leaked court papers, there would be no trial in the press.

If there was domestic violence during the marriage, Ms. McCartney could have sought intervention of the courts during the marriage and requested an order of protection against her husband.  

The fact of domestic violence would give Ms. McCartney grounds for a divorce. As I noted in previous postings, New York is not a “no-fault divorce” state. That means, a person seeking a divorce needs to allege and then prove one of the statutory grounds for divorce. The allegations of domestic violence, which if established at trial, could serve as the basis for a divorce upon the grounds of cruel and inhuman treatment.

As I also, discussed in an earlier posting, generally marital fault will not be a factor in equitable distribution, the method of dividing assets in New York.    Marital fault will only be taken in consideration where it is  “so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship.”

 A party’s acts of domestic violence would certainly be a relevant consideration in a contested custody case. In custody cases, the courts will be guided by what it perceives to be the best interests of the children. Certainly it would not be in a child’s best interest to be with a violent parent.

I do not have enough information as to form an opinion as the merits of the allegations. But, given the fortunes involved and the tabloids’ fascination with celebrity divorce, I am sure that, we will be hearing a lot more about this case in the near future.

The old adage is, “Only a fool has himself for a lawyer.” But every once in awhile a case is reported to prove that it is even more foolish for a lay person to represent himself instead of retaining an attorney.  

   Certainly, this would seem to be the rule in cases in which the parties plan to sign an agreement, whether it be a pre-nuptial, post-nuptial or separation agreement. In order to be enforceable and valid, a marital agreement not only has to be signed and notarized, but “subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Dom Rel. L. §236(B)(3)(emphasis added).

  The failure to properly acknowledge an agreement will invalidate it, rendering it unenforceable.

  In a recently reported case, the parties signed a handwritten post-nuptial agreement, which provided that a cooperative apartment would be purchased by Wife for $750,000 and would remain her separate property. She, alone, would be solely entitled to all of its income and profits.   The parties signed the one page agreement before a notary. The agreement was, however, not acknowledged. 

 Years later, when the parties divorced, the property was valued at $2,300,000. The husband contended that since the agreement was not executed as required by statute, the agreement was not valid. The Court agreed.    

  In an earlier case, the Court of Appeals,   Matisoff v. Dobi. 90 N.Y.2d 127, 659 N.Y.S.2d 209 (1997) explained why the law requiring the agreements to be acknowledged is absolute. 

Primarily, a bright-line rule requiring an acknowledgment in every case is easy to apply and places couples and their legal advisers on clear notice of the prerequisites to a valid nuptial agreement. Consequently, spouses or prospective spouses will not need to speculate as to whether the enforceability of their agreements will be supported by their original motivation or subsequent economic relationship during the marriage. Certainly, consistent and predictable enforcement is desirable with regard to such important marital agreements. . .

Acknowledgment, moreover, serves a valid purpose apart from prevention of fraud. Marital agreements within section 236(B)(3) encompass important personal rights and family interests. As we explained with regard to the similar prerequisites for proper execution of a deed of land:

 "When [the grantor] came to part with his freehold, to transfer his inheritance, the law bade him deliberate. It put in his path formalities to check haste and foster reflection and care. It required him not only to sign, but to seal, and then to acknowledge or procure an attestation, and finally to deliver. Every step of the way he is warned by the requirements of the law not to act hastily, or part with his freehold without deliberation"

(Chamberlain v Spargur, 86 NY [603] at 607, supra).

Here, too, the formality of acknowledgment underscores the weighty personal choices to relinquish significant property or inheritance rights, or to resolve important issues concerning child custody, education and care.

Certainly, had the Wife in the recent case sought the aid of counsel in preparing the marital agreement, the agreement would have been properly acknowledged. The valid agreement would have rendered the wife immune to the husband’s claim of entitlement to her property.   The wife’s two million dollar asset would have been fully protected. I would have to guess that the value of the asset to be protected dwarfed the attorney’s fee “saved” by the wife.