A Non-Custodial Parent Retains Authority in Decision-Making: Dad is not a Potted Plant

Posted by Daniel Clement on August 26, 2009

A non-custodial parent is not stripped of his parental authority simply because he is not empowered to make decisions regarding the health, education and welfare of his children ruled an Albany County Family Court judge.

Judge W. Dennis Duggan dismissed a contempt proceeding, against a non-custodial father who had changed the dosage of his fifteen-year-old daughter's medication during his parenting time. The father, a doctor, believed that his daughter’s prescription was inappropriate.

Judge Duggan stated that "While it is the general principle that the custodial parent possesses the sole authority to make medical decisions for her child, this does not relegate a non-custodial parent to the status of a potted plant."

. . . .Furthermore, he stated that the parent who is caring for a child, whether or not he has sole custody, "has a residual authority to make decisions in the child's best interest that are called for by the immediate circumstances--even if those decisions might overlap with or intrude upon the other parent's 'sole custody' authority.

Rather than unilaterally taking it on himself to change the prescription, the father, with the benefit of hindsight, probably would have been better off, at least demonstrating that he, at least, consulted with the mother and the child’s treating physician before unilaterally acting. That said, over-medicating a child is an exigent circumstance, requiring immediate action.

Regardless, it is still refreshing to see a court recognize that a non custodial parent’s voice and opinions must be heard in connection with important decisions regarding his children’s health and safety. Though not legally empowered to make decisions, the non custodial parent still possesses the duty to protect his children’s best interests.
 

Automatic Stays: Protecting the Financial Interests of the Parties in Divorce

Posted by Daniel Clement on August 24, 2009

In the past, many matrimonial actions got off to a particularly acrimonious start because one spouse was fearful that the other would transfer and hide assets, cancel insurance and run up debts as soon as they received notice of the divorce. As a result, one party had to go to the expense of making a motion to obtain an injunction preventing to the other spouse from acting financially irresponsibly.

Next week, a new law is goes into effect next month which makes the motion unnecessary. The law automatically enjoins parties from transferring property, relocating children, secreting assets, canceling insurance or running up debts.

The stay will become binding upon the plaintiff when the summons is filed to commence the divorce action and will become binding on the defendant upon service of the summons.
The summons will now state that an order is in effect and that:

1) Neither part shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.

(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.

(3) Neither party shall incur unreasonable debts hereafter, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.

(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.

(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.

Hopefully, this automatic stay will have the intended effect of eliminating motion practice at the time the divorce is commenced, lowering the costs of litigation, protecting the parties, while lowering level of animosity.
 

Married in New York: Become a Fan

Posted by Daniel Clement on August 20, 2009

In order to have real conversations about marriage and divorce  (and everything in between), I started a fan page  Married in New York.  Please check it out.   Become a fan and become engaged (in the discussion).

The first topic of discussion  is the question I am  probably asked most often: When people first wed, they are in a state of bliss and believe that their marriage will be forever. Why you think half of marriages fail?   What do you think?

Have no fear- I will continue to write this blog.   

 

 

Medical Insurance and Divorce: One Law Repealed- Another Enacted

Posted by Daniel Clement on August 12, 2009

Two years ago, Domestic Relations Law 177 was enacted, requiring parties to acknowledge their awareness that following the divorce they would no longer be eligible for medical insurance through their spouse on the basis of their marriage.

Recently, the laws governing equitable distribution were amended to require courts to consider the loss of medical insurance as a factor in awarding maintenance and distributing the marital property.

Unanticipated problems arose from the implementation of Domestic Relations Law 177 particularly because the statute mandated that all settlement or separation agreements, whenever executed,  contain specific language intended to insure that the parties were aware of the potential loss of health insurance coverage. The problem was that:

perhaps thousands of individuals who, after having lived for many years
subject to the terms of a stipulation/separation agreement relating to
their marriage, may now want a divorce. For each of these individuals,
it will be necessary that they find his or her former spouse and gain
his or her agreement to a modification of the stipulation/settlement so
that it complies with section 177 and therefore can be approved by a
judge. Quite apart from the logistical difficulties attached to this
obligation, which for spouses who have been separated for many years is
of questionable or no value, there will be additional financial consequences associated with reestablishing their attorney-client relation-
ships to re-execute stipulations or amend existing ones. Maybe more
importantly, the present statute is generating delays in the processing
of divorce actions - delays that could endanger the safety of litigants
where underlying issues of domestic discontent or violence exist.

To get around this problem, Domestic Relations Law 177 was repealed and a new law, Domestic Relations Law 255, enacted. Now, only agreements executed after October 9, 2009, must contain the statutorily mandated language.

To ensure that parties receive notice of the loss of medical benefits, the summons must not bear the notation that “once the judgment is signed, a party hereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan.”
.
 

Marriage Takes a Hit in NFL- Higher than Average Divorce Rates

Posted by Daniel Clement on August 11, 2009

With training camps open and the pre-season about to begin, the Times reports that  60 to 80% of NFL players’ marriages will end in divorce.

This statistic is really not all that surprising. Football players, at least during their playing careers, like other athletes and celebrities, enjoy a fantasy-like life of privilege and temptation.

The players, often drafted right out of college, are showered with attention, adoration, and big money contracts. They simply may not be prepared to make “life” decisions, including marriage.

New York Jet James Dearth explains:

What football players go through in their careers can affect their marriages. They endure more physical pain than most other professional athletes. They play an aggressive game with non-guaranteed contracts and have the shortest average career in sports.

He then spent four minutes listing reasons that football marriages fail: rampant infidelity, women who target athletes, trophy wives, lifestyles not conducive to marriage and players being surrounded by entourages, which can discourage intimacy.

The risks to marriage do not end with a player’s career. In fact, two years after retirement, 78 percent of N.F.L. players are bankrupt, jobless or divorced.

When athletes retire, most face an identity crisis. Many do not retire on their own terms, and once they leave the game, they also leave behind the fame and fortune, the crowds and adoration. Their wives experience a similar loss of status. The dynamic players they married can become passive and withdrawn.

The post retirement disintegration of the marriage unfortunately occurs when the player’s bank account is the fattest, but his income stalled.

It is encouraging that players have begun to form support groups, dispensing marriage advice and counseling, player to make mature life decisions. One benefit of taking a long term view of their lives is that the player may have a longer and more successful playing career.

Duncan Fletcher, the director and program manager of the Professional Athletes Transition Institute at Quinnipiac University, and Dale Jasinski, the executive director, have found that most athletes do not look beyond their playing careers, and those who do generally play more, play better and have longer careers than their teammates.


 

Cost of Medical Insurance -A Required Consideration in Divorce

Posted by Daniel Clement on August 05, 2009

In the present political climate, health care and medical insurance coverage are hot button topics. But, for those going through divorce, medical coverage has long been a fertile topic for consideration.

It was for this very reason that a law was enacted two  years ago (and discussed here)  requiring parties to a divorce to acknowledge that following the entry of divorce that they would no longer be eligible to a continuation of medical benefits derived solely by virtue of their marriage. I suppose too many people were caught off guard without medical coverage following a divorce.

Effective September 21, 2009, the loss of health insurance benefits will  be be one of the enumerated factors to be considered in determining maintenance and equitable distribution. The other factors contained in Domestic Relations Law 236 Part B include,

a) the income and property of the respective parties including marital property distributed;
b) the duration of the marriage and the age and health of both parties;
c) the present and future earning capacity of both parties;
d) the ability of the party seeking maintenance to become self supporting and, if applicable, the period of time and training necessary therefor;
e) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
f) the presence of children of the marriage in the respective homes of the parties;
g) the tax consequences to each party;
h) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
i) the wasteful dissipation of marital property by either spouse;
j) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
k) any other factor which the Court shall expressly find to be just and proper.

While the consideration of the loss of insurance benefits is the first amendment to the equitable distribution law since it was enacted almost thirty years ago, I am not certain that this is a significant development.

From my experience, most attorneys have long recognized that the cost of medical coverage must be considered in settlement negotiations. No responsible adult can afford to be without health coverage and the insurance premiums can be potentially prohibitive.

In fact, the continuation of medical coverage under a “family plan” is a prime reason why many couples agree to a legal separation even after they sign a settlement agreement.

Even though the consideration of the cost or loss of medical insurance was not expressly provided for in the Domestic Relations Law, courts were always empowered to consider it under the catch-all "any other factor . . .  the Court found to be proper"  contained DRL 236.   The new law  makes consideration of the cost of health insurance mandatory.