Husband Convicted Of Murdering Wife Prohibited From Inheriting Her Estate

Posted by Daniel Clement on November 29, 2006

Dissolution of a marriage by divorce or annulment is one of the two events triggering marital assets to be distributed; death is the other event. However, if one spouse caused the death of the other, he/she will be prohibited from taking a distribution from his/her spouse’s estate.

The Nassau County Surrogate’s Court in the case of Estate of Adeline Joseph Alexis, 2006 NY Slip Op 26452, restated the well established rule that “One who takes the life of another should not be able to profit from his wrong and shall be barred from inheriting from the person slain.” 

In this case, the husband was convicted of murdering his spouse and was, therefore, disqualified from inheriting as a distributee from his wife’s estate.

The Court noted that not only does a murderer not inherit from the victim’s estate, but he/she may be prohibited from collecting any insurance or other death benefits. The underlying principle is that no one should profit from their crime.

Identity Theft- How to Protect Yourself

Posted by Daniel Clement on November 28, 2006

If you are concerned about the growing incidents of identity theft, I recommend the following post from Trent Wilcox of the Arizona Divorce & Family Law blog:

It’s beginning to look a lot like . . . well, like the winter holidays, with all the gift-giving and –receiving opportunities that abound. Gift lists grow ever-longer and more specific, and the giver’s thoughts turn to long hours and longer lines at the mall, fighting for this year’s version of the last Furby or Cabbage Patch Doll on the shelf. Wouldn’t it be easier to log onto the Web and shop in your jammies, humming along with your Christmas tapes? But what about identity theft? Could you unwittingly be handing over your life to some scammer?

It is possible—but not as likely as the hype may lead you to believe. In the report prepared for the Federal Trade Commission in 2003 by Synovate, approximately 4.6 percent of the population experienced some form of identity theft in 2002. In the same report, it was determined that in twenty-five percent of all identity thefts reported, the thief obtained the information through theft of a purse or wallet.

So your chances of experiencing any form of identity theft are one chance in twenty. And if you are one of the unlucky ones, you have a one in four chance of having been taken when someone lifted your wallet or purse.

How else does your information get captured? Do you shred your credit card statements, or do you just toss them in the garbage? If you leave them whole, that gives a thief your name, address, and account number. If you put them in a desk drawer, someone could remove them from that drawer. And do you know where the waiter goes with your credit card when he goes to swipe it? Are you sure he’s not making notes on a post-it, just in case he feels your tip is too small? There’s more to identity theft than the Internet.

What do you do when you realize that something’s gone wrong? For most people, the main concern is with misuse of an existing credit card account. With good reason too—according to Synovate’s 2003 report, misuse of an existing card accounts for over half the incidents of reported identity theft.

First and foremost, report the loss or theft of a credit card to the issuer immediately. This can limit your liability dramatically, often to a cap of $50.00 per card. Close any accounts you know were tampered with and open new accounts with new passwords. Don’t choose something obvious like a string of consecutive numbers, your mother’s maiden name, parts of your Social Security Number, or names of children or pets. Then file complaints with your local police and with the Federal Trade Commission. Finally, place a fraud alert on your credit report.

Speaking of credit reports, they are one of the best tools for making sure accounts are not being opened in your name without your knowledge. You are entitled to one free credit report every twelve months—just for asking. Peace of mind makes a nice holiday gift to yourself.


I recall recently reading that identity theft is not uncommon between divorced spouses. Your ex-spouse does not need to sift through the garbage to obtain the personal information necessary to steal your identity.   The knowledge was obtained during the marriage and then handed to them as part of financial disclosure during the divorce.


Town Courts to be Reformed

Posted by Daniel Clement on November 27, 2006
In September, I commented on a series of disturbing articles in the New York Times about the lack of justice being dispensed in New York's village and town courts. 

Bloglines reports the reform is coming.

"New York judicial officials have a plan to begin reforming the state’s 300-year-old system of town and village courts, which have been criticized as outmoded, poorly supervised, and unfair, the New York Times reports. The plan, announced by state chief judge Judith S. Kaye, included changes that have been recommended for years by defense lawyers and legal experts. They include an increase in training for justices, improving their supervision, and monitoring whether they are protecting basic legal principles like the constitutional right to a lawyer."

"The courts — known as justice courts — will be required for the first time to keep a word-for-word record of their proceedings, like other courts in the state. As outlined in Times articles in September, the courts have survived in part because the justices — most not even lawyers — have longstanding and deep ties to the upstate political system, and because of the substantial cost of replacing them with more professional courts. The State Assembly will begin a broad examination of the justice court system next month."


Birth Mother Entitled to Visitation with Child Given Up for Adoption

Posted by Daniel Clement on November 21, 2006

A biological mother, who relinquished her paternal rights to her infant child, was granted the right to have visitation with the child.   As part of the surrender, the mother expressly reserved her right to see the child four times a year and to exchange cards and letters with the child.

The Suffolk County Family Court in the case of Mary M.O. v. Doe opined it was within the court’s purview to scrutinize whether it would be in the best interests of the child to allow the biological mother to have continued contact with the child. 

 The Court noted that the biological mother expressly conditioned the surrender on having continued contact with the child and that she maintained a relationship with the child for as long as she could until her efforts were frustrated by the department of social services and the adoptive mother.     

The Court found that the child was aware that the petitioner was her biological mother and that a cessation of visitation could result in long term feelings of distress and abandonment.  On the other hand, the Court found that continued visitation would convey a positive message to the child that the biological mother really cared.  

Significantly, there was no showing that the biological mother was in any way unfit or had acted inappropriately towards the child. 

Fail to Pay Child Support, Lose Your License

Posted by Daniel Clement on November 15, 2006

The Rosen Law Blog  reminds us that there are penalties for the failure to pay child support.. The most obvious penalty is that the “dead-beat” parent can be incarcerated and held in contempt of court.

In addition, in New York, the failure of a parent to pay court ordered child support can result in the suspension of driver’s, professional, business and/or recreational licenses. According to the National Conference of State Legislatures, every state has some version of a law that revokes licenses of parents who fail to pay child support 

Originally, I thought it an oddity that the penalty for the non payment of support was the revocation of the very professional license needed by the payor to generate income. Without the license, there could be no income. Without income, there could be no money available to pay support.

On the other hand, if the parent is not paying support, the children, the beneficiaries of the intended support, are not being hurt by the lost income occasioned by the license suspension. In the end, it may be a good lesson to the non paying parent to get a taste of what it is like not to have money for food, clothing and shelter.    

In any event, I have seen firsthand that the loss of a license works. Inevitably, after a parent’s driving privileges have been revoked (because he/she is in arrears and claims that he/she cannot afford to pay child support), he/she miraculously manages to find just enough money to satisfy the support arrears.

Pre-nup Terms Motive for Britney Spears' Divorce

Posted by Daniel Clement on November 10, 2006
There is much speculation on the web and in the blogs, for those who really care, that Britney Spears did not pick November 6 as the day to file for divorce from Kevin Federline by accident.


She filed two years and one month from the day of her marriage, on Oct. 6, 2004. Her prenup, according to legal theorists, evidently carried increases for Federline for every year of their marriage. And those deadlines, they say, likely had 30-day grace periods.


Hence, Nov. 6 would have been Britney's last chance to get out of paying a third year of alimony settlement to a basically talentless slacker who was a drain on her finances.


And in the end, money is probably what Spears’ divorce is all about. Since she deliberately showed off a new trim body on David Letterman’s show the other night, Spears is obviously getting ready to go back to work. If a new album and tour are on the boards, Spears obviously doesn't want to share the proceeds with Federline. It was clearly better to get out now, so that K-Fed can lay claim to only half of Spears’ earnings during what has been the most fallow period in her career.


Since celebrity cases oft provide good facts to illustrate how the legal system works, I thought I would offer my two cents.   It is not uncommon for the provisions of a pre-nuptial agreement to make payments (either the amount of money or the duration of payments or both) conditioned on the length of the marriage. 

In Britney's case, divorce became a consideration as a triggering or measurement date in the pre-nup approached.  Britney elected to cut her economic losses. 

Perhaps, her "poor" husband's motive  for contesting the divorce is economic,  too.   If he is successful, then  he may be entitled to whatever rights he would have acquired on the third anniversary of marriage. 

Look for a settlement, soon.


Equitable Distribution Award Trumped By Bankruptcy Filing?

Posted by Daniel Clement on November 09, 2006

A wife, who was awarded all the marital assets in a divorce, lost her bid to take immediate possession of the assets because her husband filed for bankruptcy.   

The Second Circuit Court of Appeals in the case Musso v. Ostashko, ruled that even though the divorce trial court awarded the wife all of the marital assets, because the judgment of divorce was not entered until after the husband filed for bankruptcy, the assets were the property of the husband’s bankrupt estate. The wife would become an unsecured creditor of the husband’s bankrupt estate.

On October 23, 2003, the  trial court in the parties' divorce  granted the wife equitable distribution and awarded her all of the parties’ property.  In December, the husband filed for bankruptcy. Sometime later, the judgment of divorce was docketed.

The Court found that it was the judgment of divorce which gave the wife the right to take possession of the marital property, not the decision after trial. Since  the judgment was not entered until after husband’s bankruptcy filing, the wife did not have an immediate right to the husband’s property. Therefore, the Wife’s claims would have to be resolved in the bankruptcy proceeding.

The Court signaled that the wife may have suffered only a temporary set-back.  It properly recognized that the husband abused the bankruptcy process and pointed out the t Bankruptcy Court, on remand, had the power to address any inequities resulting from this decision  “to see to it  that no injustice or unfairness is done. . ..”

Irreconcilable Differences May Be Approved for Divorce in New Jersey; When Will No Fault Divorce Come to New York?

Posted by Daniel Clement on November 05, 2006
In their New Jersey Law  Blog, Stark and Stark report that  New Jersey took a step toward revamping its grounds for divorce for the first time in 35 years when on October 23 the Assembly Judiciary Committee approved adding "irreconcilable differences" as a cause of action for divorce. 

If passed, bill A-483 would mean that if a person can prove that irreconcilable differences have caused the breakdown of the marriage for six months and which make it appear that the marriage should be dissolved and there is no reasonable prospect of reconciliation, a divorce should be entered.

Under current New Jersey law, the only "no fault" ground for divorce requires 18 months separation in different households with no reasonable prospect of reconciliation.  Although similar bills have been introduced during the past, this is the first time "irreconcilable differences" has enjoyed wide legislative support. It should be noted, however, that opponents of the bill are contending that the 6 month period is too short for couples to work through their problems. Nonetheless, the sponsors of A-483 are optimistic of the bill's eventual passage.

One can only wonder when will New York finally embrace a no fault grounds for divorce. Under present New York law, the only alternative to alleging and proving marital fault is living separate and apartment pursuant to a written agreement for a year.  All of the other states have adopted an “irreconcilable differences” grounds for divorce.   It is high time for New York do likewise.