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

The idea of marriage and divorce is not what it was years ago for many people. On Lawyer 2 Lawyer, we look at divorce law today and explore the world of marriage and how it has changed over the years.  Law.com bloggers and co-hosts, J. Craig Williams and Robert Ambrogi welcome experts, Attorney Sherri Donovan, owner of the law firm, Sherri Donovan & Associates, P.C. and author of the published book, "Hit Him Where It Hurts-The Take No Prisoners Guide To Divorce" and Attorney Daniel E. Clement, principal in the Law Offices of Daniel E. Clement, and writer of the blog entitled, “New York Divorce Report, New York’s Family and Law Blog.”

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The Court of Appeals in Matter of E.S. v P.D., unanimously upheld a constitutional challenge to New York’s grandparent visitation law.    

In upholding the New York Law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren, the Court distinguished the New York law from the overly broad Washington law struck down by the United States Supreme Court in Troxel v Granville (530 US 57 [2000]).

The statute invalidated in Troxel permitted "'[a]ny person' to petition for visitation rights 'at any time,' and authorize[d] that court to grant such visitation rights whenever 'visitation may serve the best interest of the child'" (Troxel, 530 US at 60 [quoting Wash Rev Code § 26.10.160(3) (1994)]). The Washington statute explicitly applied a presumption in favor of grandparent visitation, placing on the parent "the burden of disproving that visitation would be in the best interest" of her children.

The New York Statute, on the other hand, presumes that the parent’s wishes represent the best interests of the children.  The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. "It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement" (Lo Presti v Lo Presti, 40 NY2d 522, 526 [1976]).

While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child's best interest for his relationship with grandmother to continue — e.g., the reasonableness of father's objections to grandmother's access to the child, her caregiving skills and attitude toward father, the law guardian's assessment, the child's wishes — before making a judgment granting visitation.

Section 72(1) of the Domestic Relations Law states that

"[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child."

Section 72(1) "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek [*5]visitation with a minor grandchild" (Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004] [internal quotation marks and citation omitted]). When grandparents seek visitation under section 72(1), the court must undertake a two-part inquiry. "First, [the court] must find standing based on death or equitable circumstances"; and "[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild" (Matter of Emanuel S., 78 NY2d at 181

Valentine’s Day, for most, is the most romantic day of the year. Thanks to Hallmark, we buy the ones we love gifts and send them flowers. The problem, if you are married and sending the flowers and gifts  to someone other than your spouse, you may just get caught.   

Poynter Online details how , particularly on February 14, cheating spouses get caught:

The Atlanta Journal-Constitution found private detectives who said Valentine's Day is a big deal for cheating spouses:

Feb. 14, these investigators joke, is their Super Bowl of Surveillance.

"Eighty percent of cheating spouses will try to spend part of the day with the other person," said Jimmie Mesis, editor of the trade journal PI Magazine.

Ruth Houston -- founder of InfidelityAdvice.com and author of "Is He Cheating On You?" -- says she normally discourages the use of private investigators, but makes an exception for Valentine's Day.

"I've seen too many people spend hundreds of thousands of dollars, only to come up empty except for a receipt," Ruth said. "But if someone's cheating, they are going to make contact on Valentine's Day, either to give a gift or receive one."

Jeanene Weiner is the founder of Busted Confidential Investigations, an all-woman outfit in Marietta boasting the grrl-power motto "Where Intuition and Information Meet."

Her Valentine's Day will begin early, because she knows from experience that many of the cheaters will schedule a breakfast or lunch-hour tryst.

"This way, they get to go home after work and spend a romantic evening with the person they're married to, and no one suspects a thing," she said.

Last year, The Wall Street Journal found:

The Institute for Divorce Financial Analysts, a Southfield, Mich., trade group of professionals trained to review divorce settlements, says filings typically spike in mid-February. "It's so consistent I can't deny a pattern," says Natalie Nelson, a divorce financial analyst in Boulder, Colo.

Indeed, divorce lawyers say they frequently turn up evidence of Valentine's Day duplicity when they review financial documents. Credit-card receipts from restaurants or purchases at fancy jewelry stores are the most common giveaways, says Heidi Harris, a partner at New York law firm Sheresky Aronson & Mayefsky.

New York attorney Raoul Felder concurs: "The kinds of purchases documented for Feb. 14 give an indication of how serious the relationship is," he says.

Divorces can be complicated and messy, both from a personal and a financial standpoint.  Forbes  published an article a couple of years ago which listed financial mistakes that everyone should try to avoid.  Here is their list, with my comments about each point listed afterward:

• Having unrealistic expectations. Parties often forget that their living expenses typically double when they separate.  The same income(s) now must support not one, but two households, and it is not uncommon for things to get tight for a period of time.
  
• Not communicating.  It is extremely important that clients give their attorney all of the necessary information about their case, and not didn't seem that important can result in disastrous consequences for the clients if their attorney is blindsided with them at trial.
  
• Getting into an endless battle. Some divorcing spouses fight in Court because they want to fight.  Either they can't get past their own emotional hurt from the divorce itself, they want to make their spouse's life miserable, or they just enjoy turmoil, stress, and fighting.  Parties would be well served to fight only those issues which truly need to be fought and act reasonably throughout the process.
  
• Getting hung up on the numbers.  It is important for the marital estate to be divided fairly between the parties, which generally means an approximately equal distribution.  However, there will always be some assets which would be better going to one spouse than the other, and in some cases it makes sense to use a different distribution to accomplish other necessary goals.  For instance, one spouse may benefit from taking less of the marital estate in exchange for a larger amount of spousal support (alimony).
  
• Focusing on the present and not on the future.  The financial issues in a divorce affect both parties long after the divorce is over.  Parties should realize that when they are attempting to get as much as they can by way of assets that there are often debts and other expenses that accompany them.  It makes no sense to fight to get something that you truly can't afford to keep in the long run.
  
• Forgetting to assess tax.  Many issues in divorce cases have tax consequences, and many of those do not show up until after the fact.  Examples can include alimony payments,  dependency exemptions, and capital gains issues. Parties are well served by having an accountant available to discuss these issues before it's too late.
  
• Overlooking important .  It is important to make sure that everything in your divorce case is addressed and thoroughly analyzed by your attorney.  For instance, are you sure that your spouse doesn't have a retirement account with his employer and/or are you sure that the balance is what he/she says it is?  Let your attorney obtain the necessary information directly from the source to verify it authenticity and accuracy.
  
• Failing to untangle all joint finances.  The sooner you can separate yourself financially from your spouse, the better off you will typically be.  If your spouse fails to make a timely payment on a joint debt, that stain can show up on your credit report.  Likewise, you may still be liable to the lender if your name is on that account and your spouse doesn't pay.
  
• Failing to take into account the amount of time you'll to get your career back on track.  In many marriages, one (or both) spouses have made career sacrifices -- either for each other or for their children.  In these situations, it takes time for that spouse to be in a position to earn an income comparable to the other spouse, if ever.  Keep this in mind when you are going through a divorce, because in most cases, the parties do not have an equally financial standing at the outset.