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

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,... More

There are few certainties in life. However, one of life’s certainties is that all marriages will end, whether by death or divorce. At the end of marriage, whether by divorce or death, disputes over money and the disposition of marital assets may be inevitable. However, a pre-nuptial agreement can help lessen the potential for conflict by clearing identifying the parties separate property and defining the parties’ rights to the marital property. A recent article illustrated why a Pre-Nup may be a smart money move.  1. Why are pre-nuptial agreements beneficial? "One of the common reasons to get a pre-nup is... More

The Court of Appeals, New York’s highest court announced in a pair of cases that marital funds which were used to pay the separate obligations of one of the parties during the marriage could not be recouped in the divorce. This is a far reaching decision because, for instance, a second wife cannot now recover from her husband marital funds used to pay his first wife spousal maintenance or child support. In short, the divorce court should only consider the assets and liabilities existing at the time of the divorce. The Court in Mahoney-Buntzman v. Buntzman declared that: Courts... More

It was been an interesting week in family law practice, which I thought I note before taking a few days off with my family .  In the same week Governor Paterson announced that he was introducing legislation to recognize same sex marriage, a couple decisions involving the custody rights of same sex marriages were announced.   In the first, Debra H. v. Janice R., the Appellate Division, First Department, held that the same sex partner of a woman who gave birth did not have standing to assert parental rights after the parties broke up.   The Court ruled that although Debra H.,... More

One of the most recurring question I am asked  from people considering divorce is:" Am I responsible for my spouse's debts and liabilitie?"     Most recently, i  answered that very question, on Linked In. Question- I'm about to break up with my wife. While we are separated I do not want to be responsible for debts she may incur. Will I be responsible for her debts? Answer - You are really asking two distinct questions about debts. The first questions how debts will apportioned between you and your spouse as part of a divorce; the second question asks what is your... More

Human organs are not assets to be distributed in a divorce. Thus is the ruling in  Batista v. Batista, the case in which a Long Island doctor sought compensation for donating a kidney to his wife, The National Law Journal reports that: At its core, the defendant's claim inappropriately equates human organs with commodities," Referee A. Jeffrey Grob wrote in Batista v. Batista, Jr., 201931/05. Grob noted that while the term "marital property" is "elastic and expansive ... its reach, in this Court's view, does not stretch into the ether and embrace, in contravention of this State's public policy, human... More

Time Magazine questions, Will the Economy Kill Your Marriage? A couple of weeks ago, I noted that as the economy worsened, my practice became busier. Time seems to confirm my observations and even offers some possible explanations for this phenomenon: There's the lawyer theory, that money provides the soft fatty tissue that insulates the marital skeleton; once it's cut back and people get a good look at the guts of their relationship, they want out. And there's the marriage-counselor theory, that couples who were never quite on the same page in the checkbook finally get pushed off the ledger by... More

  I read an interesting article in Sunday’s Times about how the credit crunch has resulted in more people borrowing money from their friends and families in order to purchase a home.   There is really nothing new about this phenomenon.   Parents have long gifted or loaned their children money for a home down-payment.    There is also nothing new about the myriad of problems that arise when the parties divorce.  Since the down payment generally represents a significant portion of the marital assets, all involved, husband, wife and their parents, may claim the down payment to be theirs.    The... More

The other evening I had the pleasure of being on a panel to discuss the nuts and bolts of legal blogging at a continuing legal education seminar at the New York City Bar Association with three of the best bloggers out there: Kevin O’Keefe, Scott Greenfield, and Eric Turkowitz. As Kevin noted in his blog, Real Lawyers Have Blogs: We covered a lot of ground for the 50 plus in attendance. The program went 3 hours strong running from 6 to 9 PM. . . We reviewed the basics of blogs, blog publishing platforms, better blogging practices, RSS and how to... More

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... More

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,... More

As part of a divorce, the marital home is generally sold. But, in view of the slow down in the home sales market, it is possible that the proceeds from the sale of a home may be insufficient to fully pay off the mortgages on the property. In a prior post, I explored the option of retaining possession of the martial home to avoid selling at a loss. For some, this is simply not an option and the home must be sold. Most couples cannot or simply do not want to continue living together after a divorce. Many cannot afford... More

They started to the fight When the money got tight . . .                 Billy Joel, Scenes from an Italian Restaurant With all the talk about recession and the fall-out from the sub-prime mortgage crisis, it is no surprise the telephones in most divorce lawyers’ offices are ringing off the hook. I have even noticed that the numbers of readers of this blog has dramatically increased in the last several months. Jeffrey Lalloway in the California Divorce and Family Law blog notes: The sharp downturn in the market is taking a similarly painful toll on couples who are breaking up.... More

A recent study discovered that 20% of divorcing couples tried to conceal assets or income from the spouse. As reported in the Telegraph: The study - by the accounting firm Grant Thornton, which surveyed 100 family lawyers - found that husbands were much more dishonest when a marriage crumbled. In cases where assets had been hidden, 88 per cent involved men concealing wealth from their wives. Just two per cent involved women hiding assets. In the remainder of cases, both partners tried to conceal wealth from one another. . . . "Men are seeing these huge settlements and they are... More

The Appellate Division answered a common question- what happens when one spouse uses marital assets to pay a separate obligation. It is quite common for the parties to enter the marriage with existing  financial obligations, whether it be student loans, credit card debt or even an obligation to pay child support  or maintenance from a prior marriage. It would be the norm to pay these financial obligations from current income. The problem is that the separate debt is being paid with marital assets, the current income. In the fascinating case of Johnson v. Chapin, the husband used martial assets for... More

When thinking of marital assets to be distributed during a divorce, litigants prepare for battle over homes, pensions and investment accounts. Unschooled or poorly advised litigants may overlook valuable assets. For instance, what happens if one of the parties attends school or attains an educational degree during the marriage. The Appellate Division re-affirmed the well settled rule of law that an academic degree may constitute a marital asset subject to equitable distribution, even though the degree may not necessarily confer the legal right to engage in a particular profession. While the MBA degree might not actually be a prerequisite to... More

Your credit rating could be hurt by divorce. As part of divorce, you distribute not only your assets, but your debts and obligations as well. An in-artfully drawn marital agreement may provide that one spouse will assume the liability for a joint debt. However, an agreement apportioning joint liability between you and your spouse is not binding on the creditor. The creditor can attempt to collect the debt from either or both parties. As pointed out in a Fox Business article, “The mistaken assumption that you're off the hook for financial obligations can result in a series of missed payments... More

I just wanted to announce the debut of the new and much improved Clementlaw web-site. The Practice Areas part of the site provides some useful and practical information about divorce, separation, child custody, equitable distribution, the different types of marital agreements and other areas under the broad umbrella of family law practice. You are invited to explore. I would love to hear your comments as to its user friendliness and readability.... More

In a fascinating case, the Appellate Division, as a punishment, dismissed the appeal of a litigant who deliberately and continuously disobeyed court orders. In the case Wechsler v. Wechsler, a husband was ordered to pay to his wife $22,770,623 as equitable distribution. The husband filed an appeal and refused to pay any part of the judgment, despite repeated court orders requiring his immediate compliance. As a result of the husband’s willful disobedience of court orders, the husband was found to be in contempt of court. The court issued an arrest warrant and ordered the husband, who resided in Colorado,  to... More

Illegal conduct, like bribing the judge in your divorce case, may be considered as a factor in awarding equitable distribution. Domestic Relations Law §236(B)(5)(d) provides a laundry list of factors to be considered by a court in distributing marital property. The thirteenth factor is the catch-all “any other factor which the court shall expressly find to be just and proper.” The New York Legal Update provides the background of the case of Levi v. Levi in which a husband’s attempt to bribe the matrimonial judge constituted egregious marital fault and was to be factored into the equitable distribution award. The... More