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

  With the holiday season fast approaching, family lawyers may find an unexpected complication in their clients' post-divorce lives.
Attorneys say that in many cases, both the husband and wife are in such a rush to finalize the separation that they may overlook how they will handle the holiday season.

According to a study by the Houston Chronicle in 2006, approximately one million children each year experience their first holiday season in the wake of their parents' divorce, and the consensus among lawyers in those cases is that the dynamic can take its toll not only on the children and their parents, but on the lawyers themselves.

Christine Bauer, a family law attorney in Orlando, Fla., claims that a lack of preparedness can put a serious damper on the holiday season for everyone involved.
 
"Judges hate dealing with these issues," said Bauer, who attempted to bring such an issue before a judge last year.

The case involved two unmarried parents who could not agree on where the child would spend Christmas.
 
"The judge decided that the regular visitation schedule fell on the father's time and Christmas was just another day," Bauer said.
The decision, naturally, did not go over well with the mother.

"The thing is, judges expect parents to behave like adults, and the general assumption is they should do what is right for their child," said Bauer.

                                        Think ahead

The biggest mistake divorced parents make, according to Bauer, is waiting until the last minute to decide where and with whom the child will spend the holidays. Most assume the matter will be covered in the marital settlement agreement, but Bauer said it should be brought up immediately after the assets are divided during the divorce
.
"So many people [during the divorce] say that they will work it out later, but then a week before Christmas is when people call me and say [they] don't know what they are doing."
 
Bauer said the way to alleviate this is to ask each of the parents to put their expectations in writing during the divorce proceedings. Which parent will have the child on Thanksgiving, which will have the child on Christmas, and so forth.
 
This is particularly important when parents live far from each other.
"You have to decide well ahead of time and be cognizant of the fact that it can be difficult to fly people around during the holidays. You split the time so everyone can celebrate on their own time," Bauer said.
 
Family lawyers agree that problems often arise when one parent decides at the last minute he or she wants the child on a day that is not spelled out in the agreement. Dan Clement, a solo divorce attorney from New York City, advises his clients to be reasonable and avoid bringing the matter into a courtroom.
 
"You will have to see what the real relationship is between the parent and child," said Clement. "Is there any reason why the non-custodial parent shouldn't have time over the holidays? Assuming the mother had a child over one holiday, a judge won't see a reason why the dad shouldn't for the other."
 
            Ensure clients understand agreement

One common scenario around the holidays is that the custodial parent finds an excuse at the last minute not to allow the child to be seen by the non-custodial parent.

"There's always a nervous one on pins and needles," said Clement. "Clearly the one who has custody of the child controls whether the non-custodial parent will see the child. It's not uncommon for Johnny to suddenly have a cold or wake up with a 102-degree fever the morning of [visitation]."

To alleviate that potential complication, Clement advises attorneys to ensure both parties are clear not only on the agreement, but on potential penalties if a parent does not adhere to the agreement, up to and including a long-term loss of visitation. But he noted that this is little consolation to the non-custodial parent on the day in question.
"[Non-custodial parents] can buy plane tickets and make hotel reservations, but the fact is they won't know if they're going to see their child on that day until they see them. It's a tough situation because they have their heart set," Clement said.

                    Propose sharing the holidays

Janet Langjahr, a divorce and child custody attorney practicing in Boca Raton, Fla., said the ideal scenario in a benign separation is for the parents to spend at least part of the holiday together, so the whole family is together.
 
"The first holiday after separation can be very difficult for a child," said Langjahr. "If the parties still live close together and can act in a civil fashion, then it's best for the kids if the parents are each at least celebrating part of the holiday with them."

Langjahr said sharing the days can take a lot of the burden off an attorney as well, but is something that must be considered early in the divorce proceedings, preferably at the point when the temporary order is entered.
 
"That's when you hear the restrictions on comings and goings [of the parents]. The first thing you have to think about is, 'Have any restrictions been put on my client?' If they have, it would be prudent to go to court and prevent them before a trial."

                Supervised visitation

In some cases, one or both of the parents requires supervision when with the child. On holidays, however, parents could run into trouble if supervisors or therapeutic trainers have time off.

"There has to be some kind of structure in place, depending on the degree of dysfunctionality," said Langjahr

Langjhar's suggestion: employ a trusted friend or relative agreed upon by both parties to replace a professional supervisor. However, Langjhar tempers this suggestion with a warning that in more extreme circumstances of abusive behavior or psychological problems, a professional supervisor or hospital setting should be utilized no matter what.

In that case, during a marital counseling session, the wife admitted to a long term extramarital affair. Thereafter, the husband moved out of the marital residence. More than one year later, the plaintiff-wife commenced the action for divorce, after 17 years of marriage, on the grounds of abandonment and cruel and inhuman treatment. The defendant-husband moved for summary judgment dismissing the action. The Supreme Court granted the husband's motion, and the Second Department affirmed.


The Second Department noted that in order to be granted a divorce on the grounds of abandonment, a plaintiff must demonstrate that the defendant unjustifiably and without the plaintiff's consent abandoned the plaintiff for a period of one or more years (see Domestic Relations Law § 170[2]). Here, The Court found that the husband was justified in leaving the marital residence because of his wife's extramarital affair. Thus, there was no abandonment, and the wife was not entitled to the divorce on this ground.


With respect to cruel and inhuman treatment the Court noted that the marriage was one of long duration, and thus, a high degree of proof was required for termination on the ground of cruel and inhuman treatment. And here the Court found that the plaintiff-wife's allegations of embarrassment and discomfort were insufficient to establish cruel and inhuman treatment

"The fugitive disentitlement doctrine permits a court to dismiss an appeal if the party seeking relief is a fugitive while the matter is pending' (Degen v United States, 517 US 820, 824 [1996]; see Ortega-Rodriguez v United States, 507 US 234, 242 [1993]). The doctrine is based on the inherent power of courts to enforce their judgments (see Degen v United States, supra at 823), and it has long been recognized and applied to those who evade the law while simultaneously seeking its protection (see Bonahan v Nebraska, 125 US 692 [1887]; Smith v United States, 94 US 97 [1876])" (Matter of Skiff-Murray v Murray, 305 AD2d 751, 752 [2003]). The doctrine applies in civil cases provided there is a nexus between the appellant's fugitive status and the appellate proceedings (id. at 753). The nexus requirement is satisfied where the appellant's absence frustrates enforcement of the civil judgment (id.). The principal rationales for the doctrine include: (1) assuring the enforceability of any decision that may be rendered against the fugitive; (2) imposing a penalty for flouting the judicial process; (3) discouraging flights from justice and promoting the efficient operation of the courts; and (4) avoiding prejudice to the non-fugitive party (Empire Blue Cross & Blue Shield v Finkelstein, 111 F3d 278, 280 [2d Cir 1997]). . .


Here, appellant, having been adjudicated in contempt of court and made the subject of an arrest warrant, is a fugitive (see Skiff-Murray, supra; Finkelstein; supra). That appellant is a resident of Colorado is immaterial; he is wanted in New York pursuant to a warrant and refuses to return to this State. Furthermore, there is a nexus between appellant's fugitive status and the appellate proceedings. Appellant's fugitive status resulted from his failure to comply with an order enforcing the judgment of divorce requiring him to transfer to respondent substantial assets, and his refusal to return to New York. Indeed, appellant's counsel acknowledged to Supreme Court at the hearing on appellant's motion to reduce the amount of money he owed respondent that he did not appear in court as directed because he was afraid of being arrested and incarcerated pursuant to the warrant. Appellant's appeal is from the judgment of divorce, the underlying charter of his financial obligations to respondent, and all post-judgment proceedings before Supreme Court and this Court have revolved around that charter. Appellant's absence from the State owing to his fugitive status has, as evidenced by the multiple motions and applications made before both Supreme Court and this Court, frustrated respondent's enforcement of the judgment of divorce. Moreover, under these circumstances, the principal rationales for the doctrine — imposing a penalty for flouting the judicial process, discouraging flights from justice and promoting the efficient operation of the courts, and avoiding prejudice to the non-fugitive party — would be vindicated by dismissing the appeal.

At bottom, appellant has willfully remained outside of New York in order to avoid the jurisdiction and authority of the courts of this State (James, 27 AD2d at 814), and we will not afford him review of the judgment of divorce since he has evaded court mandates

1.Failing to be prepared with copies of all relevant financial and legal documents;
2.Failing to obtain financial advice as part of the divorce. Parties often fail to consider impact of taxes on the assets to be distributed. Other assets need to be appraised;
3.Failing to sell the marital home when you can ill afford to remain in it;
4.Failing to explore settlement or other avenues of dispute resolution and, instead, rushing into court; and
5.Failing to untangle assets and debts acquired during the marriage.

Collaborative Law is a dispute resolution system that permits the parties to a divorce or family law issue to settle out of court in a respectful, private and mutually agreeable manner. The parties each have their own attorneys, but they agree at the outset to not go to court. Instead, they set goals, gather information, create solutions and reach agreements in a series of relatively short meetings which they schedule themselves. They control the timing, the subjects and, most importantly, the solutions. Courts are used to formalize the agreements once the parties have worked things out.


One of the reasons why Collaborative Law works is that once the Collaborative participation agreement is signed by the parties and their attorneys, the attorneys are required to withdraw from representing their clients if the process fails to reach an agreement and someone wants to go to court. Those attorneys cannot represent those clients in a contested matter in court. That creates a huge incentive for both attorneys and clients to stay with the process and look for other solutions when the going gets a little tough. In a regular litigation case, the easy cop-out is for one or both parties to tell the other party that they will just let the judge decide if the other party won’t agree to an offer. That can’t be done without costing both parties a lot of money and without the attorneys losing business. Everyone loses by that alternative, so everyone generally keeps trying to find an acceptable solution.