Governor Orders State to Recognize Same Sex Marriages

Posted by Daniel Clement on May 29, 2008
Governor David Paterson must be a follower of this blog.

I have written several times in the recent past about  decisions in which the courts have recognized the validity of same sex marriages performed in other jurisdictions.

Now, the Governor has issued an directive requiring all New York State agencies to offer gay couples, wed in jurisdictions that allow same sex marriage (like Canada, Massachusetts and now California), the same legal rights as enjoyed by heterosexual couples.

According to the New York Times, “The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses. “

“In addition to conferring more rights on gay couples, the changes might also require more responsibilities. For example, the order that required certain employees of the executive branch to file financial disclosure documents for their spouses would also apply to gay spouses.”

There does seem to be a bit of a contradiction in that New York will not permit same sex couples to marry, but it will recognize the validity gay marriages performed beyond its borders.




Fees to Process QDROs Are Allowed.

Posted by Daniel Clement on May 21, 2008
Equitably distributing pensions and retirement plans have become more expensive. According to the Divorce Law Journal, Fidelity and Charles Shwab are now imposing fees to process Qualified Domestic Relations Orders (“QDRO”).

A QDRO is a court order that recognizes the right of the ex - spouse to receive all or part of a pension plan that belonged to their ex – spouse.

The financial institutions can charge the processing fees so long as they are authorized by the retirement plan. Now, the parties not only have to negotiate the division of the pension and the cost of preparing the QDRO, but the expense of implementing the QDRO, as well

Israeli Divorce Based on Get Not Recognized in New York

Posted by Daniel Clement on May 20, 2008
As reported on Law.com, a Brooklyn judge refused to recognize the validity of a divorce granted by an Israeli court. The Israeli divorce was based upon a “get,” a religious decree of divorce granted by a rabbi.

The Court found that allowing a get to serve as the basis of a valid divorce would provide an end-run around the New York's fault-based divorce laws.

"If this court were to sanction the utilization of a 'Get' to circumvent the constitutional requirement that only the Supreme Court can grant a civil divorce, then a party who obtains a 'Get' in New York could register it in a foreign jurisdiction and potentially, later on, rely on the 'Get' to obtain a civil divorce in New York thereby rendering New York State's Constitutional scheme as to a civil divorce ineffectual," Supreme Court Justice Jeffrey S. Sunshine of Brooklyn ruled in Tsirlin v. Tsirlin, 20542/0.

Commentators have found this to be a curious decision.

It's most unusual for a domestic court to look at the reasons behind a foreign divorce decree.

It'll be interesting to see how the decision not to give comity plays out in other situations. How would it apply when you have an administrative divorce from Japan, which is alien to our system, or a divorce from a country that allows divorce for grounds that we find unusual?"

Interim or Pendente Lite Attorneys' Fees: A Court Offers a Primer

Posted by Daniel Clement on May 20, 2008
When an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. Because of the importance of such awards to the fundamental fairness of the proceedings, we hold that an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied — or deferred until after the trial, which functions as a denial — without good cause, articulated by the court in a written decision.
So reads the first paragraph of the Appellate Division decision in Prichep v. Prichep, which offers a primer on interim awards of counsel fees in divorces.

In Prichep, a wife with an annual income of only $4,000, sought an interim award of attorney’s fees from her husband, a cardio-vascular surgeon, with an annual income in excess of $400,000.00.  By the time of this application, she had already owed her attorneys more that $159,000.

As the court explained, an award of interim counsel fees ensures that the non-monied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. This award may be:

appropriate to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation'" If the playing field were not leveled by an award of interim counsel fees, "a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior) matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis.


The Court was sensitive to the disparity in the Pricheps’ financial resources. The wife had incurred large legal bills that she would never be able to pay without exhausting all, or most, of her resources. The husband, on the other hand, was able to pay his legal fees without any substantial impact upon his lifestyle.

The Appellate Division recognized that deferring the award of attorneys’ fees until the final resolution of the case, could compromise the non-monied spouse's ability to adequately litigate. How long can an attorney be expected to work without being paid? Absent an ability to pay, certain theories of prosecuting or defending a case have to be abandoned, giving the wealthy spouse an unfair advantage.

Indeed, until this court’s ruling, Mrs. Prichep’s attorneys had to decide whether it was better to: 1) withdraw because their client could not pay their bills, 2)continue to represent their non-paying client, run up a large bill, and gamble that the court would grant them their fees at the conclusion of the litigation; or 3) simply to work for free. Mr. Prechep’s attorneys, on the other hand, would, in all probability, be regularly paid in full.

Fortunately, the Court realized, this just would not be fair

Divorce: A Cause of Learning Disabilities?

Posted by Daniel Clement on May 16, 2008
A study published in Ambulatory Pediatrics warns that young children, who are separated from their parents, are at increased risk for learning difficulties and may require special education.

Separation of parents and children is one of the unfortunate consequences of divorce. It is disturbing to learn that divorce may be a cause of learning disabilities.

The study enrolled 1,619 children between ages 4 and 6 who were entering Rochester City School District kindergarten classrooms in the fall of 2003. Parents or caregivers were asked if their child had ever been away from a parent for more than a month, and if so, if the separation occurred once, twice, or more than three times. These adults also completed the Parent's Appraisal of Children's Experiences (PACE) survey to measure their children's developmental skills by various observable behaviors (e.g., if the child can cut with scissors; if he or she can tie their shoes") The results were then analyzed to produce four 4-point scales, each measuring different dimensions of healthy. development, including: how well a child learns new tasks; how well he or she uses language to express ideas; how literate he or she is (e.g., can he or she read his own written name"); and the quality of his or her speech (e.g., do other people often have difficulty understanding the child")


Children who have been separated at any point scored significantly worse both on the 4-point scales measuring their ability to learn new tasks and their pre-literacy skills. Of note, their expressive language and speech scores fared better-- they were comparable to those of their non-separated peers

There are practical explanations for the study’s findings. For instance, in the case of a single parent household, the custodial parent may be working and raising several children. This parent simply may not have the time to spend reading to the children or exposing them to new things. It is believed that early childhood exposure to new ideas and experiences fosters children’s learning skills.



Some Parents Are Unfit To Be Alone With Their Children

Posted by Daniel Clement on May 07, 2008
I am a firm believer that children should be able to enjoy a relationship with both parents. But, every once in awhile there is a case that leads me to believe that some children should never be allowed to be near their parents in an unsupervised setting.

This story, which appeared in the New York Times about an ex Minnesota Viking Darrion Scott is one such case.

The former Vikings defensive lineman Darrion Scott was charged with assault and accused of holding a plastic dry-cleaning bag over the head of his 2-year-old son. Scott, 26, was charged with third-degree assault and domestic assault by strangulation, both felonies. According to the complaint, the boy’s mother said Scott said he was playing with the child and wanted to see if the boy could get the bag off his head himself.

The first time I read the father’s defense I was certain I had mis-read it. Scott's  inane defense was that  he was playing with the child and wanted to see if the boy could get the bag off his head himself.

What was he thinking?

Most normal parents shudder at the mere thought of their child with a plastic bag over their head. This father actually admitted to putting a bag over his son’s head. I cannot fathom how this father should ever be permitted to be with his son or any other child in an unsupervised setting.

Mildred Loving Dies; Challenged Law Barring Inter-Racial Marriage

Posted by Daniel Clement on May 06, 2008
Mildred Loving,, who successfully challenged Virginia’s law that barred inter-racial marriage died this week. In the landmark case Loving v. Virginia, the United States Supreme Court unanimously struck down Virginia’s miscegenation law as it violated the equal protection clause of the Constitution.

Mrs. Loving’s obituary in the New York Times presents a haunting account of her case, her life and the cruel effects of the miscegenation laws:

By their own widely reported accounts, Mrs. Loving and her husband, Richard, were in bed in their modest house in Central Point in the early morning of July 11, 1958, five weeks after their wedding, when the county sheriff and two deputies, acting on an anonymous tip, burst into their bedroom and shined flashlights in their eyes. A threatening voice demanded, “Who is this woman you’re sleeping with?”

Mrs. Loving answered, “I’m his wife.”

Mr. Loving pointed to the couple’s marriage certificate hung on the bedroom wall. The sheriff responded, “That’s no good here.”
The certificate was from Washington, D.C., and under Virginia law, a marriage between people of different races performed outside Virginia was as invalid as one done in Virginia. At the time, it was one of 16 states that barred marriages between races.

After Mr. Loving spent a night in jail and his wife several more, the couple pleaded guilty to violating the Virginia law, the Racial Integrity Act. Under a plea bargain, their one-year prison sentences were suspended on the condition that they leave Virginia and not return together or at the same time for 25 years.

Judge Leon M. Bazile, in language Chief Justice Warren would recall, said that if God had meant for whites and blacks to mix, he would have not placed them on different continents. Judge Bazile reminded the defendants that “as long as you live you will be known as a felon.”

They paid court fees of $36.29 each, moved to Washington and had three children. They returned home occasionally, never together. But times were tough financially, and the Lovings missed family, friends and their easy country lifestyle in the rolling Virginia hills.

By 1963, Mrs. Loving could stand the ostracism no longer. Inspired by the civil rights movement and its march on Washington, she wrote Attorney General Robert F. Kennedy and asked for help. He wrote her back, and referred her to the American Civil Liberties Union.

The A.C.L.U. took the case. Its lawyers, Bernard S. Cohen and Philip J. Hirschkop, faced an immediate problem: the Lovings had pleaded guilty and had no right to appeal. So they asked Judge Bazile to set aside his original verdict. When he refused, they appealed. The Virginia Supreme Court of Appeals upheld the lower court, and the case went to the United States Supreme Court.

Mr. Cohen recounted telling Mr. Loving about various legal theories applying to the case. Mr. Loving replied, “Mr. Cohen, tell the court I love my wife, and it is just unfair that I can’t live with her in Virginia.”

Mildred Delores Jeter’s family had lived in Caroline County, Va., for generations, as had the family of Richard Perry Loving. The area was known for friendly relations between races, even though marriages were forbidden. Many people were visibly of mixed race, with Ebony magazine reporting in 1967 that black “youngsters easily passed for white in neighboring towns.”

Mildred’s mother was part Rappahannock Indian, and her father was part Cherokee. She preferred to think of herself as Indian rather than black.

Mildred and Richard began spending time together when he was a rugged-looking 17 and she was a skinny 11-year-old known as Bean. He attended an all-white high school for a year, and she reached 11th grade at an all-black school.

When Mildred became pregnant at 18, they decided to do what was elsewhere deemed the right thing and get married. They both said their initial motive was not to challenge Virginia law.

“We have thought about other people,” Mr. Loving said in an interview with Life magazine in 1966, “but we are not doing it just because somebody had to do it and we wanted to be the ones. We are doing it for us.”

In his classic study of segregation, “An American Dilemma,” Gunnar Myrdal wrote that “the whole system of segregation and discrimination is designed to prevent eventual inbreeding of the races.”

But miscegenation laws struck deeper than other segregation acts, and the theory behind them leads to chaos in other facets of law. This is because they make any affected marriage void from its inception. Thus, all children are illegitimate; spouses have no inheritance rights; and heirs cannot receive death benefits.

“When any society says that I cannot marry a certain person, that society has cut off a segment of my freedom,” the Rev. Dr. Martin Luther King Jr. said in 1958.

Virginia’s law had been on the books since 1662, adopted a year after Maryland enacted the first such statute. At one time or another, 38 states had miscegenation laws. State and federal courts consistently upheld the prohibitions, until 1948, when the California Supreme Court overturned California’s law.

Though the Supreme Court’s 1967 decision in the Loving case struck down miscegenation laws, Southern states were sometimes slow to change their constitutions; Alabama became the last state to do so, in 2000.




Mom's Allergy to Dad's Cat Does Not Prevent Visitation in Dad's Home

Posted by Daniel Clement on May 05, 2008

Imagine a mother seeking to prevent children of the marriage from having visitation with their father in his home simply because he has a cat, particularly when there was no claim that the cat was vicious or endangered the children.

In Mandel v. Mandel, decided by a Nassau County court last week, a mother claimed that the children’s exposure to the cat in their father’s home posed a serious health risk to her and, as result, sought to limit the father’s visitation.

In the case, the mother claimed that she had to be hospitalized because she had severe allergic reaction to the cat. The father testified that, in order to protect the mother from exposure to the cat, the children would change their clothes either at the father’s home before returning to the mother’s home or immediately after returning to the mother’s home in her garage. The father also testified that the children were exposed to other dogs and cats in the homes of their friends.

The Court found that there was no precedent for excluding the children from the father’s home because the cat presented no risk to the children. The Court urged the children to continue take reasonable precautions to limit the mother’s exposure to the cat following the visitation their father.

I suspect that there was really something more going on in the case then whether the children should be around the father’s cat. In its decision, the court alluded to the fact, that the cat did not become an issue to the mother’s health until the father stopped paying the mortgage on the former marital residence now occupied mother and children.

But, like my mom always said, “Two wrongs don’t make a right.” Because the father may have done something that the mother did not like, the mother had the knee jerk reaction of attempting to restrict the father’s access to the children to gain some advantage.

What should give the mother some concern is that this decision is an interim decision and there will soon be a trial. If the court felt that this mother was using the issue of the cat and visitation to obtain advantage over the father, the mother’s strategy will have backfired. If, for instance, as a result of this application, the court felt the mother and was manipulative or lacked credibility, the result, at trial, could be devastating.

Hopefully, an amicable settlement is imminent.