Family History Predictive of Children's Divorce

Posted by Daniel Clement on July 31, 2007
The Family Law Professor Blog and Forbes.com report on an Australian study published in the Journal of Marriage and Family that shows that children of divorced parents “had twice the risk of going through a divorce themselves.”

The study found that family history was more predictive of divorce than genetics.

The research did not completely eliminate all genetic factors, however. According to D'Onofrio, about 66 percent of the increased risk for divorce appears to stem from the simple fact of a person's parents having been divorced. The remaining 34 percent of the risk seemed to be tied to genetic factors, as well as other factors affecting parents and children. . .

The study is unique, the researcher said, because it is based on data from more than 2,300 twins, their spouses and their adult offspring. In other words, many of the younger people in the study are actually cousins who are also "genetically half-siblings," because their aunt or uncle shares their parents' genes.

So, to help separate out the effects of genetics from family environment, the Australian team compared the marital success of cousins who grew up in stable families (no divorce) against cousins who came from families split by divorce.

I suppose that if children are exposed to the notion that marriage is not forever, they may be more accepting of the idea of terminating the martial relationship  through divorce when conflict arises. This would seem to be consistent with the notion that second or third marriages also have a lower probability of success.

Court Imputes Income to Calculate Child Support

Posted by Daniel Clement on July 30, 2007
This is a common scenario - you are seeking a court order for child support, but the non-custodial parent is claiming an annual income far less than you suspect he/she actually earns.

One way to prove that a party’s actual income is higher than his/her reported income is to illustrate how his/her reported lifestyle could not be supported by the reported income.

The Appellate Division in Strella v. Ferro ruled that: in calculating a party's child support obligation, the court "need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential.”

In that case, the father claimed that he had been unemployed and only recently begun to earn $500 per week despite having recently earned as much as $101,000 per year. The Court imputed an income of $96,000 to the father. In doing so, the Appellate Court noted that:

Here, the father's claimed annual household expenses were approximately double his claimed annual income in 2004 and 2005. Additionally, his financial data did not indicate that he used money from his savings or that he incurred greater debt to pay the remaining amount of his annual expenses not covered by his average annual income. During the relevant period, he did not liquidate any of his investments, he had no outstanding balance on his home equity line of credit, and his credit card statements showed no unpaid balances of a size and nature to correspond to his household expenses.

Clearly, in the absence of incurring debt or drawing down on savings, if the party’s expenses exceed his/her reported income, then the reported income must be under-reported. In such a case, the Court should look beyond the filed tax return to calculate the child support obligation

New York Domestic Violence Victims May Terminate Residential Leases

Posted by Daniel Clement on July 24, 2007
In order to permit a victim of domestic violence to relocate to a safe location unknown to his/her abuser, a new law has been enacted in New York to permit a person who has obtained an order of protection to also obtain an order permitting him/her to terminate his/her residential apartment lease. This new law would allow the victim to move to a safe location and free him/her of any future financial obligation to the landlord.

In order to terminate the lease, the victim must show that:

  • There remains a substantial risk of harm if the victim remains in the present residence;
  • The risk could be substantially reduced be the relocation;
  • The landlord refused to voluntarily consent to the lease termination; and
  • The victim is acting in good faith.

The Court may condition the termination of the lease on the payment of rent and other obligations up and until the in New York actual termination date.

This is an important measure to protect the most vulnerable victims of domestic abuse. It is not enough to simply give a victim of domestic violence an order of protection if the abuser knows where the victim lives; too often, orders of protection are violated. Victims would constantly feel the need to “look over his/her shoulder”  unless they can get a fresh start away from their abusers. 

Since the lease termination order requires a judicial approval, it is unlikely to be abused. The landlord’s inconvenience and expense of re-letting an apartment, palls in comparison to the need to provide a safe home to a battered person.

Settlement Agreement Ambiguities Result in More Litigation

Posted by Daniel Clement on July 20, 2007
The Appellate Division in Walker v. Walker provides us with yet another lesson on the importance of carefully drafting martial agreements.

In Walker, the parties, in an oral stipulation of settlement, agreed to divide a 75 acre property. The stipulation specifically provided that defendant "would be entitled to one-half or 37½; acres off the westerly side of that parcel of 75 acres (emphasis added)."  Not surprisingly, the parties then had a dispute about how the property was to be actually divided.

On appeal, the Court found that the stipulation was ambiguous,
because there is no mechanism by which to determine how much of defendant's 37½; acres must be from the "westerly side" of the parcel. Stated otherwise, the stipulation provides no basis from which to discern a dividing line.
As the result of a simple, and, perhaps, misplaced “or” in a settlement agreement, the parties were forced to perfect an appeal and to conduct a hearing to clear up the ambiguity and to ascertain their intent at the time (they thought) they settled the case.

The lesson, select the language of agreements carefully. If necessary, give examples. In this case, an illustration on the land survey showing how the property was to be divided would have saved this couple a lot of legal fees and heartache.

Child Dependency Deductions Requirements To Be Strictly Enforced: Must File Form 8322

Posted by Daniel Clement on July 19, 2007
In order for the non custodial parent to take the dependency deduction, it is essential to file the Form 8332 with the tax return. The Family Law Taxation blog cites a case in which the tax Court announced that this requirement will be strictly applied.

In Chamberlain v. Commissioner, the U.S. Tax Court ruled that the former husband (taxpayer) was not entitled to the dependent deduction for one of his children because he didn't attach a valid IRS Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents) to his 2003 Federal tax return (the child credit was also denied because it is premised on being entitled to the dependent deduction for the child).

The taxpayer's former wife executed a Form 8332 in which she relinquished the dependency deduction for one of their two children beginning in 1995 and for all future years. The taxpayer claimed that he attached the original Form 8332 to his 1995 return, but that a subsequent fire destroyed all of his copies. The IRS was unable to provide a copy because their 1995 tax return information had been destroyed (pursuant to IRS document destruction policies).

This result may seem harsh, but as the Court indicated, "Although we are sympathetic with [taxpayer's] plight, we are bound by the wording of the statute as enacted and accompanying regulations when consistent therewith.

It is clear,  if  you are  seeking to claim the dependency deduction,  make sure the proper forms are filed with the tax return.

A New York Time Columnist Gets It Wrong: Pre-Nuptial Child Custody Provisions Violate Public Policy

Posted by Daniel Clement on July 18, 2007
James Andrew Miller wrote a compelling op-ed piece in the New York Times, theorizing that expensive and heart wrenching custody battles could be avoided if parties intending to marry, merely entered into a pre marital agreement. He details the understandable outrage of friends, told by their soon to be ex-spouses that they would be allowed to have visitation with their children.

However, what Mr. Miller ignores is that parties can contract to virtually any issue of the marriage except child custody and support. Any provisions would be contrary to public policy and would be unenforceable.

 Child custody is based upon the best interests of the children.   It would be virtually impossible to make a best interests determination when the parties are first getting married and before children are even born. For this reason, a custody determination should only be made at the time parents elect to divorce.  

 

 



After Divorce, A Coffin for Your Wedding Ring?

Posted by Daniel Clement on July 17, 2007
Just when I thought I had seen it all, I received an email “introducing the Wedding Ring Coffin . . . the perfect divorce gift for those who are seeking a light-hearted ritual of closure at the end of their marriage”

You read correctly, a $30 coffin, complete with “brass handles” and a “black velvet lining that sets the ring off nicely”

The Boomer Blog, however, had an interesting take on this, recognizing that, perhaps, divorce is a cottage untapped cottage industry:
Clearly there are a lot of Americans with time on their hands and a few extra pennies in their pocket. And whose to blame them for wanting to part nicely with their past

For marketers this serves as a revelation: the wedding industry is a gloriously profitable one. Why not create a divorce industry—tailored to boomers who are going through the difficult but ultimately freeing divorce passageway and might appreciate a little levity. After all, it’s good to bury the hatchet.

I just wonder, what’s next? Ring burial plots?

Continue Reading

Court Provides a Primer on Pre-Nuptial Agreements and Enforces a 40 Year Old Agreement

Posted by Daniel Clement on July 17, 2007
The Appellate Division in Van Kipnis v. Van Kipnis enforced a pre-nuptial agreement which the parties entered into in France in 1965.  The agreement provided that “Each spouse shall retain ownership and possession of the chattels and real property that he/she may own at this time or may come to own subsequently by any means whatsoever.”

Although there is a presumption under New York law that property acquired during the marriage is marital, the Court found that the presumption was overcome by the unambiguous terms of the parties’ agreement and their conduct in keeping their assets separate. As a consequence, the parties’ separate assets were not subject to equitable distribution.

In rendering this decision, the Court offered a primer on the relevant law  of matrimonial agreements. Among the basic concepts elaborated upon are:

  • There is a "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" (Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001] Thus, "[d]uly executed prenuptial agreements are accorded the same presumption of legality as any other contract.”
  • "Agreements are to be construed in accord with the parties' intent."
  • The best evidence of what parties to a written agreement intend is what they say in their writing."
  • A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.
  • Extrinsic evidence of what the parties really intended is generally inadmissible, and will be considered only if the agreement is found to be ambiguous, W.W.W. Assoc., v Giancontieri 77 NY2d 162 [1990]).
  • Extrinsic evidence may not be utilized to create an ambiguity that would otherwise not exist
The decision can be read here.

Statute of Limitation on Pre-Nuptial Agreements Tolled Until Divorce Action Commenced

Posted by Daniel Clement on July 10, 2007
Governor Spitzer signed into law, this week, a bill amending Domestic Relations Law  §250, tolling the three year statute of limitations for commencing an action or asserting a defense that arises from a pre-nuptial or post nuptial agreement until service of process has been completed in a divorce action or until one of the parties dies. The law does not apply to separation agreements or agreements entered into during the matrimonial action.

What this means in plain English is that a party does not have to take any action to enforce or to declare void a marital agreement until an action for divorce or annulment is commenced.

This amendment makes sense. It would be impractical to require a party, during an intact marriage, to contest or change the terms of prenuptial agreement. Under the amended law, any dispute over the marital agreement would need to be asserted within three years of the commencement of a matrimonial action.

Return of Engagement Ring - New York Has Jurisdiction Over Runaway Brides

Posted by Daniel Clement on July 05, 2007
The engagement ring cases keep coming.

In the latest reported engagement ring case, Dreznick v Lenchner, the loving couple resided together in New York when they became engaged to be wed. A year and a half later, the woman ended the engagement and moved from the man’s residence with an engagement ring, a dog, and other items of personal property allegedly belonging to the man.  The jilted man demanded the return of the ring and other property and the woman, who had moved to California, refused. The man commenced suit and the woman sought to have the action dismissed, claiming a New York court lacked personal jurisdiction over her.

In a rather curious ruling, the Appellate Division found that personal jurisdiction was obtained on the cause of action for the return of the engagement ring under CPLR 302(b). That section grants a New York court  personal jurisdiction over non-residents and non-domiciliaries in "matrimonial actions."

  As Thomas Swartz questions, since the parties were never married, how could CPLR 302(b) apply?
The Court  did not elaborate.  Perhaps, deliberately so, hoping that the "just" result would not be questioned. After all, this woman just did not want to return the ring.   She lost at the trial court level and appealed.  (It must have been some ring for them to spend that much money fighting about it.)

It is interesting that the appellate court took such an expansive view of the term matrimonial action. 
I wonder if the court will take such an expansive view when it is confronted with a break up of a same sex relationship.