Is No-Fault Divorce Bad for Women and Children?

Posted by Daniel Clement on September 25, 2008

The Divorce Blog highlights the raging debate over “No-Fault” divorce; is no-fault divorce good or bad idea?   As I discussed before, New York is the only state without a no-fault grounds for divorce and proposals for it  are again before the state legislature.

Quoting a Newsday feature, the article voices the concern that no fault divorce is somehow “dangerous to women and children.”

No-fault divorce allows couples to end a marriage without assessing blame.   Neither spouse has to prove or accuse the other of marital fault.   Likewise, no-fault divorce prevents one spouse from seeking to take advantage of the other in cases where neither party has a cognizable grounds for divorce.

In the end, divorces become less acrimonious and less expensive as marital fault need not be considered.

The criticism of no fault divorce is that it would, somehow, put victims of domestic violence at a disadvantage. However, the criticism misses the point. The abused victim would no longer have to prove (at a needless and costly trial) that they are vcitims of  "cruel and inhuman treatment” in order to terminate the marriage. Iff, after trial, marital fault has not been established, the abusive relationship is not terminated. Doesn’t this put the abused spouse at far greater risk?

The other concern, that the moneyed spouse could seek a no fault divorce, leaving the dependent spouse to fend for his or herself, is also unfounded. The current proposals for no fault divorce require all issues (i.e., grounds, equitable distribution, and child support) to be resolved prior to the entry of a judgment of divorce. If a trial is necessary, the parties could focus all of their resources on issues other than fault.

 

Tips to Prevent Assets From Being Hidden

Posted by Daniel Clement on September 18, 2008

In this time of economic turmoil, I anticipate the divorce rate will increase.  When money is available to fund a comfortable lifestyle, spouses are more forgiving of minor transgressions. But, when there is less cash available, it is more difficult of overlook a spouse’s foibles and failings.

So, as the marriages begin to unravel, the inclination of some disreputable spouses may be to hide or stash away marital assets. Divorce 360.com offers some tips to Know When your Spouse is Hiding Cash. Some of most common methods of hiding money are:

 

  • moving money from a joint account to an individual one;
  • putting assets into a family trust, offshore corporation or shell corporation;
  • buying collectibles or other items that retain value but are not liquid;  
  • purchasing insurance policies, cashiers checks and savings bonds.
  • investing in certificate "bearer" municipal bonds or Series EE Savings Bonds. (These do not appear on account statements because they are not registered with the IRS.) or 
  • colluding with an employer to delay bonuses, stock options, or raises until a time when the asset or income would be considered separate property.

The article identifies some of the indicia that a spouse may be attempting to hid assets. Tell tale signs of wrong doing include:


1. Significant and unexplained changes in the value of assets.   Unexplained changes could be a signal that something untoward has happened.  

2. Does your spouse's income suddenly seem lower? Some individuals can manipulate how they take their income, for example, deferring income. 

 

3. If your spouse travels internationally he could have hidden foreign ban k accounts   

4. Are family members whom your spouse previously ignored now being lavished with gifts? Or has your spouse decided to suddenly invest in a family business venture?

 

The common sense best protection –  stay fully informed about the marital finances. 

 

Grandparent Visitation: Intact Family Denies Visits to Mentally Ill Grandmother

Posted by Daniel Clement on September 08, 2008

I am back to blogging after a short break during my summer vacation.

While I was away, the Appellate Division in the case Karr v. Black, denied a grandparent visitation with her grandchild. The Court upheld a lower court’s finding that an intact family’s’ refusal to permit a mentally ill grandmother to have visitation with their child was sound; because the grandmother had no relationship with the child, there was no need for further inquiry to determine whether visitation would be in the best interest of the child.

In deciding this case, the court engaged in an extensive discussion of the law concerning grandparent visitation.

Analysis appropriately begins with the observation that "the 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" (Matter of E.S. v P.D., see also Troxel v Granville,   

 In the absence of automatic standing based on the death of one of the child's parents, the court must make a threshold determination that the grandparent has "established the right to be heard" (Matter of Emanuel S. v Joseph E., 78 NY2d 178, 181 [1991]) by demonstrating the existence of "circumstances in which equity would see fit to intervene.”

Only after standing has been established is it necessary or permissible to "determine if visitation is in the best interest of the grandchild" see Matter of McArdle v McArdle, 1 AD3d 822, 823 [2003]). In exercising its discretion to confer standing on the grandparent, the court is obliged to "examine all the relevant facts" among which are whether the family is intact, "the nature and basis of the parents' objection to visitation," and "the nature and extent of the grandparent-grandchild relationship."

The Court was not persuaded by the grandmother’s argument that that reason she did have a relationship with the children was because she was prevented from doing so by the child’s parents. The Court distinguished a parent’s effort to frustrate visitation from an effort to protect the child.

In this case, the parents were justified in limiting the grandmother’s access to the grandchild.  For not only did the grandmother suffer from mental illness, which required repeated hospitalizations, she also disregarded orders of protection, requiring her to “stay away” from her adult children.

Under these circumstances, the Court concluded, “the parents' actions to prevent contact between petitioner and their child was legally cognizable as protective, not obstructive.”