No-Fault Divorce Enacted in New York

Posted by Daniel Clement on August 15, 2010

New York now has no-fault divorce. 

While signing the legislation into law,  the governor noted:

Finally, New York has brought its divorce laws into the 21st century. . .  These bills fix a broken process that produced extended and contentious litigation, poisoned feelings between the parties and harmed the interests of those persons -- too often women -- who did not have sufficient financial wherewithal to protect their legal right.

New Yorkers  can now divorce provided that their marriage has irretrievably broken down for six months or more.   New York was the last state to allow no fault divorce.

Simultaneous with enactment of no fault divorce, laws for providing guidelines for fixing temporary spousal maintenance and attorney’s fees were enacted.    The legislation created a formula and list of factors to govern such awards   The purpose of which, according to the Governor, would be to. . .

. . . allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order.

The other piece of legislation enacted today would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys' fees.

We will take in depth looks at the new laws regarding spousal maintenance and attorneys’ fees in the very near future.  

Relocating Parent Ordered to Provide Visitation by Skype

Posted by Daniel Clement on August 13, 2010

iStock_000013160353XSmall.jpgOne parent’s post divorce desire to relocate with children creates a practical and legal dilemma; if the non custodial parent has a close relationship with the children, and the children are permitted to relocate, their relationship will certainly suffer.    

The reasons for the move, which are generally described as benefiting the custodial parent and the children, must be carefully weighed against the negative effect the move will have on the non-custodial parent’s relationship with the children. 

One judge came up with a clever solution- video or tele-conference visitation. 

In Baker v. Baker, the Judge permitted a mother, who was about to lose her home to foreclosure to relocate to Florida, where she could live with her parents, provided that father could video chat with the children, via skype, several times a week.;

In considering the relocation, the Court cited the standard announced in the Court of Appeals in the Tropea v. Tropea:

 . . . we hold that, in all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests

While scheduled video conference is not a substitute for sharing a meal, tossing a ball, or enjoining a hug with a child, it does provide a way of maintaining regular and meaningful communication.  

Visitation via video conference may not be the solution in all cases, but it offered a fair resolution in this case where the mother and children had to move because their home was in foreclosure. 

 

 

 

Same Sex Couple Ordered To Pay Child Support

Posted by Daniel Clement on August 06, 2010

As Above the Law points out,  it is ironic that on the day a federal judge in struck down California’s ban on same sex marriage, a New York appeals court ruled that a same-sex partner may be liable for child support.

In the case H.M. v. E.T, the Court ruled that the when the

 partner of a child’s biological mother consciously chooses, together with the biological mother, to bring that child into the world through [artificial insemination,] and where the child is conceived in reliance upon the partner’s implied promise to support the child, a cause of action for child support . . .has been sufficiently alleged . . .

As Linda McClain, a Boston University law professor who specializes in family law, noted in the WSJ Law Blog, the ruling “is very much in keeping with the notion that it’s better for children to have two parents, than one, and why deprive a child of a source of parental funds?”

This decision also serves as reminder that marriage is more than a celebratory party; it is a relationship that creates legal obligations and responsibilities.

 In New York same sex couples can now divorce and be ordered to pay child support; they just can’t wed.   

Eliminating the Risks of Separation for the "Un-Divorced"

Posted by Daniel Clement on August 03, 2010

Pamela Paul, in her New York Times article, The Un-Divorced, discusses the trend of couples separating, but not divorcing.   The primary reasons that parties remain married, but separated are the practical and financial, not familial. The effect of endless separations on the children rarely seems a priority.

Perhaps the principle reason couples remain legally wed is to maintain or continue health care coverage.    When a couple divorces, the ex-spouse is no longer to eligible to be covered through the other’s medical coverage.   The former spouse either may maintain the existing policy under COBRA or purchase a policy on his/her own. 

 As pointed out:

 If one person has an existing condition, obtaining affordable health care coverage is often difficulty or impossible. The recession, with its real estate lows and health care expense highs, adds incentives to separate indefinitely.

A second reason to separate instead of  divorce is to obtain lock-in social security benefits.

According to federal law, an ex qualifies for a share of a spouse’s Social Security payment if the marriage lasts a decade. In the case of more amicable divorces, financial advisers and lawyers may urge a couple who have been married eight years to wait until the dependent spouse qualifies.

However, a separation without an agreement memorializing the parties understanding of their rights and liabilities leaves the parties at risk.  

Property acquired or debts incurred by the other are technically marital and subject to equitable distribution.  

Absent a maintenance waiver, if one spouse becomes disabled, unemployed or unemployable, the other may become responsible for paying spousal maintenance.

Finally, if you pre-decease your spouse, your spouse can make a claim against your estate; by virtue of marriage, your spouse has a right of election which prevents you from disinheriting hi/her.    The right of election could be waived in a separation agreement. 

By entering into a separation agreement, you could get all of the benefits of a separation and limit your exposure to risk.