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

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

While I took a short break from writing this blog, the Appellate Divisions have been very active, having decided several matrimonial cases of interest. In the next couple of posts, I will try to catch-up and discuss some of these recently decided cases. In Graev v. Graev, the First Department, sought to answer the question, when does an ex-spouse’s cohabitation with another adult result in a forfeiture of maintenance payments? Domestic Relations Law § 248 allows the court to eliminate maintenance upon proof that the wife is habitually living with another man and holding herself out as his wife. What... More

A divorce could easily stretch out for a year or more. For this reason, it is not uncommon for a spouse, dependent on the other, to make a motion for temporary maintenance (alimony or spousal support in New York) to be paid during the divorce. Sometimes, for either strategic or economic reasons, no motion is made for temporary support. However, the failure to make the motion for pendente lite maintenance does not necessarily result in a windfall to the economically advantaged spouse. To the contrary, after trial, the advantaged spouse could be found to be arrears in maintenance and owe... More

Postings in two divorce and family law blogs highlight a growing conflict between the states on how to deal with a parties continuing obligation to pay alimony or maintenance, as it called in New York, if the former spouse enters into a domestic partnership. To frame the issue, what happens if you are obligated to pay maintenance to your ex, but your ex rather than  re-marrying, enters into a domestic partnership? A number of states have enacted civil union or domestic partnership statutes which grant same sex couples some, but not all, of the rights and privileges of marriage. Maintenance... More

The Oklahoma Family Law Blog highlights some of the basic tax concerns that need be considered in connection with divorce.   • Alimony is taxable and deductible. The person who provides alimony can claim the payments as a deduction, while the person who receives it can avoid a large end-of-year tax bill by paying estimated taxes during the year. Unlike alimony, child support is not deductible or taxable. • Who claims the children? The parent who has custody of a child usually can claim the child as a dependent. However, with the custodial parent’s consent, the parent without custody can claim... More

A bankruptcy filing does not discharge an obligation to pay child support.   To the contrary, since other debts are discharged, funds that might have been paid toward other debts can be freed up to pay child support. The Child Support Blog cites the recent case of  former NFL wide receiver André Rison to illustrate this point.  A bankruptcy court  ordered Rison into involuntary bankruptcy so that  $105,000 in child support arrears can be paid. While some unsecured debts can be wiped out or reduced in a bankruptcy, other obligations, like child support, are "nondischargeable." This means that the bankruptcy filing... More

Michael Sherman in The Alabama Family Law Blog started an excellent series of articles (seven so far) on preparing for divorce.  Preparation is essential. Since one of the primary purposes of divorce is to divide the marital assets, you should be knowledgeable about your and your spouse’s income, assets and debts.   If you are in the dark about your family finances, a good place to start is by reviewing your income tax returns, check stubs and credit card statements.   After you have retained competent counsel, you should provide him/her with copies of your relevant documents. Look about your home- do... More

One product of women earning as much as or even more than men is that more wives are paying alimony (maintenance in New York) to their ex-husbands. Forbes Magazine reports that another by-product is that as men set their sights on women's earnings, women have become more protective of those dollars. In fact, according to the American Academy of Matrimonial Lawyers, 44% of attorneys included in a recent survey said they've seen an increase in women asking for prenuptial agreements over the last five years, where in previous decades, prenuptial agreements were almost always sought by men. A lot of women... More

The New York Times spotlights Justice Robert A. Ross, a matrimonial judge on Long Island. Justice Ross has apparently earned a reputation for enforcing court orders and judgments by holding recalcitrant litigants in contempt of court and imprisoning them. Too often, when a party prevails in a divorce action, winning a judgment against their spouse, the victory is pyrrhic.   The “losing” spouse will not only refuse to honor the judgment, but will deliberately frustrate enforcement.    Last February, the Matrimonial Commission, a task force convened by the New York State court system, issued a report that called, among other things, for... More

There is much speculation on the web and in the blogs, for those who really care, that Britney Spears did not pick November 6 as the day to file for divorce from Kevin Federline by accident. She filed two years and one month from the day of her marriage, on Oct. 6, 2004. Her prenup, according to legal theorists, evidently carried increases for Federline for every year of their marriage. And those deadlines, they say, likely had 30-day grace periods. Hence, Nov. 6 would have been Britney's last chance to get out of paying a third year of alimony settlement... More

Whenever playing a childhood game, the loser would inevitably call out as the game ended, “Do over.”  In golf, there are mulligans.  In the “game of divorce,” in most cases, there are no second chances to re-negotiate or litigate fairly negotiated and properly executed marital agreement. The recently decided case of Kojovic v. Goldman, 2006 NY Slip Op 07595, makes this point abundantly clear. In Kojovic, the parties negotiated a post-nuptial agreement resolving all issues of equitable distribution and spousal maintenance. By the terms of the agreement, the wife was to receive a payment of $1.15 million dollars for her share of a closely held... More

The old adage is, “Only a fool has himself for a lawyer.” But every once in awhile a case is reported to prove that it is even more foolish for a lay person to represent himself instead of retaining an attorney.      Certainly, this would seem to be the rule in cases in which the parties plan to sign an agreement, whether it be a pre-nuptial, post-nuptial or separation agreement. In order to be enforceable and valid, a marital agreement not only has to be signed and notarized, but “subscribed by the parties, and acknowledged or proven in the manner required to entitle... More

The gossip pages will always provide rich material for the divorce and family law blogs. This weekend was no exception.  Nicole Kidman wed this weekend, but before the ceremony, she and her new husband signed a pre-nuptial agreement.  A pre-nuptial agreement is a good way for parties to protect their assets prior to marriage and long before a divorce is even a consideration. These agreements are not something that only extremely wealthy need consider. I am asked to prepare pre-nuptial agreements by parties considering a second marriage, particularly when children are involved, and in cases where there is disparate wealth. With greater... More

Paul McCartney announced recently that he was seeking a divorce from his present wife Heather Mills. The question most frequently asked, is why didn’t Paul (since we all seem to familiarly call him by his first name) have a pre-nuptial agreement. Whatever the reason he didn’t we can only speculate. Regardless, I believe that under New York law, most of his assets would be safe.    Paul acquired most of his wealth prior to his current marriage so that would be his separate property and, therefore, beyond the claims of his current wife. Where Sir Paul has exposure is on the issue of... More