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

Divorce certainly brings out the worst in people. Some actions and behaviors are occasioned by malice or greed. Others are designed to get a perceived a tactical advantage in the divorce action. Regardless, as detailed in Cathy Meyer’s article, these Dirty Tricks of Divorce will, in all probability, end up harming your case more than they help. These dirty tricks escalate the acrimony and could even pre-dispose a judge against the wrong doer.

Here is Cathy Meyer’s list of dirty tricks, with my two cents added:

• Withdrawing marital funds from joint bank accounts and transferring the money to accounts in your sole control. This transfer will result in the aggrieved party running into court to obtain a restraining order preventing the funds from being squandered.
•  Running up credit cards charges for which the other spouse is primarily liable. This can be prevented by closing joint lines of credit when the divorce is commenced.
•  Refusing to pay any household bills or send any support until forced to do so by court order. This is one of the steps in a routine called "Starve Out The Other Spouse". The goal is to get the other spouse in a financial position where he or she will settle the case out of financial desperation.
•  Refusing to speak with your spouse about anything, including arrangements for him or her to have parenting time with your children. This falls into the category of a tactic used by some lawyers to create conflict, create issues that don't need to exist, increase legal fees and wear the other side down. It can also cause a serious break in parent-child ties if the non-custodial parent doesn't get to see the children because he or she can't set up any parenting time.
•  Filing false reports of domestic violence intended to have your spouse barred from the marital home.

Adam Liptak, in his New York Times Sidebar column correctly questions the efficacy of requiring service by publication when a defendant in a legal action cannot be located. It is  universally accepted that no one really reads the legal notices published in newspapers.

In a New York divorce action, the defendant must be personally served with the summons. The only time this requirement really becomes a problem is when the whereabouts of the defendant are unknown, e.g., a situation where the parties have been separated for years.

In a case where a defendant cannot be located, the plaintiff may seek an order permitting service by publication after unsuccessfully undertaking a search to locate the defendant. The idea is to give the defendant actual notice of the impending divorce. The only problem – no one really believes that the defendant will actually read the legal notice.

I have a problem with this type of service- it very expensive and it really does not give the defendant notice of the lawsuit.

The publication requirement always struck me as a pointless waste of money,” said Deborah L. Rhode, a law professor at Stanford who in divorce cases has represented poor women forced to buy ads to notify their missing husbands that they had been sued.

“It was particularly ludicrous for our clients, who were below the poverty threshold and had partners who would never be looking at the designated publication,” Professor Rhode said. “It was a form of what we used to refer to as ‘sewer service.’ ” (The term refers to the fraudulent practice of claiming to have served legal papers on someone while actually tossing them in the sewer or trash.)

Ironically, Liptak, a newspaper columnist, acknowledges that the requirement of publication in a newspaper is an anachronism and that service by posting on the internet would be more effective. I agree.

First, there is a greater likelihood that the defendant will get notice of the action on the internet than in a print ad.  Even the most widely read newspaper has a limited geographic reach. The internet is world wide. A person could possibly receive notice of the New York legal action anywhere in the world simply by doing a google search of his/her name.

Second, the cost of posting the legal notice on a designated web site, would be de minimus. The cost of this service could be reduced from several hundred dollars to a few dollars.

Finally, service by an internet posting would be an environmentally sound method of service. Hundreds of pages of news print could be saved a year. If the posting was made through a court run web site, the result could be an infusion of capital to the always cash strapped court system. The only downside to allowing service by posting on the internet is that the newspapers will lose advertising sales

The Appellate Division in Mildy v. Mildy examined some of the factors considered in equitably distributing martial assets. In this case, the Court was confronted with the issues of equitably distributing the wife’s enhanced earning capacity and jointly held real property which was, in large part, paid for with the wife’s separate property.

The Wife earned a master's degree during the marriage.  Her enhanced earning capacity  was valued at $140,000. After trial the husband was awarded a half interest in the degree. The Appellate Court reduced the husband’s interest in the wife’s enhanced earning capacity to 25%, and provided the following reasoning:

While both parties agreed that they hired a babysitter to care for the child while the wife was in school, the husband testified that, although he continued to work full time while the wife was in school, he cared for the parties' child during the time when he was not working, relieved the wife of her household chores so that she could study, maintained the household, took the child to school and activities, and assisted the wife with her studies, as he had a similar background in special education. There was no evidence that the husband sacrificed any career opportunities during the time the wife was pursuing her degree. Under the circumstances of this case, we find that the husband's contributions did not warrant an award of 50% of the wife's enhanced earning capacity.

The parties purchased a vacation property in Florida in 1997 for the sum of $270,000, subject to a mortgage of $243,000. In 1998, the wife received $500,000 as a gift from her family, which was deposited in a joint account. The husband conceded that the money was her separate property. On February 2, 1998, the sum of $216,238.58 was withdrawn from the joint account to pay off the mortgage on the Florida property.

In equitably distributing the property, because the wife’s separate property contribution was traceable, the court granted the wife a credit equal to the $216,238.58 paid to satisfy the mortgage. The balance of the house proceeds were distributed equally between the parties.

The Pennsylvania Family Law Blog poses the very practical question- what do to with a gift or inheritance received during a marriage? How can one insure that a gift to an adult child does not end up marital property subject to the other spouse’s claims?

As the blog post points out,

Generally, marital property means all property acquired by either party during the marriage, regardless of whose name it is in. An exception arises for property acquired by gift (except between spouses), such as an inheritance.

In New York, the same rule applies. Provided the gift remains in the sole name of the recipient of the gift, it will remain  that spouse’s separate  property. If the gift is put in joint names, the other spouse could claim that it is marital property and subject to equitable distribution. The burden shifts to the recipient spouse to prove that the property is and was separate property