New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

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 does not wipe them out or reduce them. These debts must be paid regardless of the bankruptcy.

In fact, the 2005 revisions to the Bankruptcy Code made “domestic  support obligations” like alimony and child support a top priority. In order to obtain a discharge under Chapter 13, the debtor must provide for full payment of priority debts, including arrearages in domestic support obligations and certify that all post-petition domestic support obligations have been met.

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A new study appearing in the Canadian Medical Association Journal reports that children are twice as likely to be prescribed Ritalin after their parents divorce.

According to Mind Hacks, Ritalin is the trade name for the amphetamine-like drug methylphenidate. It is typically prescribed for ADHD, a diagnosis which describes problems with staying focused, impulsiveness and / or hyperactivity.

The full study can be read here.

As questioned in the Earthquake in Zipland blog,  “Is it possible that divorce acts as a stressful life event that creates adjustment problems for children, which might increase acting out behavior, leading to a prescription for Ritalin?”

Could another reason be that children of divorce are more likely to be studied and observed more than children from intact families? Children of divorce are routinely given the opportunity to work out their issues with mental health professionals. For this reason, I am certain that the percentage of children in therapy is highest among children from broken homes.  Could this then account for the greater number of diagnoses and prescriptions?

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A wife was granted $184 million as equitable distribution after trial in a Chicago divorce action. This equitable distribution award is reported to be the largest in history.  

Charles Meyer reports in the Pennsylvania Law Blog that  “this is a rags to riches story, as the parties came to the United States from Eastern Europe with only $500.  Husband became a huge success in the energy business, and later sold his business for several hundred million dollars.

At issue in the case was the wife’s contribution to the wealth. 

David Sarnacki writes in Domestic Diversions that:

They would walk together after dinners, and Michael would share details of his work, looking for empathy, advice or merely an open ear,” Rosenfeld wrote in court filings. “For many years, their marital partnership flourished. Michael provided sustenance and security, and Maya provided love, support, advice and counsel

While the numbers  may seem obscene, the result seems just.   The reported facts reveal that the marriage was a true economic partnership. All of the wealth was created during the long term marriage through the joint efforts of the couple. It seems only fair that the marital property be divided equally.   Quite frankly, even if the division of marital assets should not have been equal, would a 60-40 split  of  the nearly $400 million marital estate really made that much of a difference to these parties?          

It is, disappointing that this couple did not follow the lead of Blixseths, who divided their fortune amicably over a bottle of wine.  

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The Financial Times reports that there is a growing trend for post nuptial agreements.   Like the pre-nuptial agreement, the post-nuptial agreement sets out the parties’ rights, obligations and liabilities upon the termination of marriage by either death or divorce. The only difference between the two marital agreements is that the post-nuptial agreement is executed sometime after the parties are wed.

According to the Financial Times, post-nups are particularly popular with hedge fund managers.   This, however, makes perfect sense.   The financial tycoons are merely seeking to limit their downside risk in the event that their marriages become, to use the street slang, “bearish” (or in the event they want to seek other opportunities.)

The article notes that at least one hedge fund requires its new partners to have a marital agreement in which the partner’s spouse waives his/her claims against the fund.   The hedge fund firms are looking to protect themselves since the partnership interest is a marital asset and is subject to equitable distribution.   In order to ascertain the value of the partnership interest, the partnership needs to be appraised opening the door to an inspection of the hedge funds books and records.

So why would a spouse waive his or her claim against partnership interest in the hedge fund? The spouse is probably banking that the marriage will continue and he/she will continue to enjoy the lifestyle afforded by interest in the hedge fund. But, in the event the marriage ends in divorce, the consideration for the waiver is probably a generous distributive award.   

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According to a report in Today’s Family News, men and women going through a divorce are not alike.  Men going through divorce are more likely to become depressed.  Women are more likely to suffer financially.

The article, based upon a Canadian Study, found that "men were six times more likely to be depressed following a separation or divorce than men who remained married. That was nearly double the likelihood of divorced or separated women undergoing a similar episode compared to women whose marriages were intact."

Of course, one likely explanation for this is that men as a result  of divorce are far more likely to lose close or daily contact with their children.

One the other hand, women were about three times more likely than men to suffer a substantial loss in household income after their marriage broke down.

 The results of the study can be found here.

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The Appellate Division, in the aptly named case, Gross v. Gross, reversed a trial court’s grant of a divorce based upon the husband’s cruel and inhuman treatment of the wife. 

In reaching this decision, the appeals panel reaffirmed that in marriages of long duration, a high degree of proof of cruel and inhuman treatment is necessary to make out a cause of action.   In this case, Mrs. Gross claimed that Mr. Gross forced himself on her sexually ramming her up against the bathroom wall. Perhaps, if the parties had not been married for thirty seven years, this sexual assault may have been a sufficient basis for a divorce.

Not to beat a dead horse, but if New York had a no fault divorce, it would have been unnecessary to measure the amount abuse needed to sustain a cause of action for cruel and inhuman treatment.

The New York Legal Update wrote this about the decision:

"Cruel and inhuman treatment" is one of the six grounds for granting a divorce in New York. Just what type of conduct constitutes "cruel and inhuman treatment." It is defined by Domestic Relations Law § as:

treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

A decision from the First Department yesterday (Gross v Gross, 2007 NY Slip Op 04362) illustrates and reminds that obtaining a divorce on cruel and inhuman treatment is not necessarily an easy thing to do, and that somewhat isolated incidents involving physical altercations is not necessarily enough. The evidence at trial was as follows.

Plaintiff wife was asked at trial whether defendant had ever "physically force[d] himself on [her] sexually." In response, plaintiff testified that "I would have to say yes. It's only one time that, really where he hurt me." Plaintiff explained that defendant "[r]ammed [her] up against the wall" in the bathroom of their residence. Plaintiff did not elaborate in any other way about what she meant in stating that defendant had "force[d] himself on [her] sexually." Plaintiff offered no evidence that she had sustained any injuries as a result of this incident. In fact, she testified on cross-examination that she did not suffer any physical injuries as a result of the incident. Plaintiff also testified that defendant, on many occasions, "physically grabbed [her]." When asked to describe how defendant "grabbed" her, plaintiff stated: "[h]e'll grab me, he'll pull me down the hall, he'll block me so I can't leave the room, throw me on the bed, push me against the wall." Again, no testimony was elicited from plaintiff that she sustained any injuries as a result of defendant's conduct.

The Supreme Court had granted the divorce. However, on this evidence, the First Department reversed and dismissed the complaint. The Court noted that the parties had been married for over 37 years, and that under such circumstances, a "high degree" of proof of cruel and inhuman treatment was required. With respect to the plaintiff's testimony, the Court stated that it could include conduct ranging from the criminal (e.g., forcible rape) to the merely obnoxious. But it stated that reprehensible and highly offensive behavior is not necessarily sufficient to establish the cruel and inhuman treatment. Here it found that the plaintiff's uncorroborated testimony regarding unwanted physical contact was vague and general, and there was no evidence as to the effects of defendant's conduct on her physical or mental well-being. The Court further noted that the parties continued to reside together in the marital residence through the trial, they were able to talk to each other in a civilized manner, have dinner together every night, go out for meals and to the movies, and attend social functions.

The lesson here is clear that if there is not a lot of evidence of cruel and inhuman treatment another ground for divorce should be pleaded

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The Appellate Division granted a grandmother visitation with her grandchildren in the case In the Matter of Carol Steinhauser.

Of significance, the Court noted that  that mere animosity between the children’s father and his mother-in law was not a sufficient basis for denying visitation. In the brief opinion, the Court, after detailing the two pronged-inquiry for considering a grandparent’s petition for visitation,concluded that visitation would be in the best interests of the children.

"When grandparents seek visitation under [Domestic Relations Law] section 72(1), the court must undertake a two-part inquiry. First, [the court] must find standing based on death or equitable circumstances'; and if [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild'" (Matter of E.S. v P.D., 8 NY3d 150, 157, quoting Matter of Emanuel S. v Joseph E. L., 78 NY2d 178, 181). "[T]he 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., supra at 157). "[W]hile . . . the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation" (Matter of E.S. v P.D., supra at 157). " The question of visitation, which involves a determination [*2]of what is in the child's best interests, is left to the discretion of the court'" (Matter of Poppe v Ruocco, 37 AD3d 608, 609, quoting Matter of Weis v Rivera, 29 AD3d 812, 813; see Lo Presti v Lo Presti, 40 NY2d 522, 527). "An essential part of this inquiry is whether a meaningful relationship exists between the petitioning grandparents and the child" (Matter of Weis v Rivera, supra at 609; Matter of Principato v Lombardi, 19 AD3d 602, 603). The Family Court's determination concerning whether to award visitation " depends to a great extent upon its assessment of the credibility of the witnesses and upon the assessments of the character, temperament, and sincerity of the parents'" (Matter of Thomas v Thomas, 35 AD3d 868, 869, quoting Maloney v Maloney, 208 AD2d 603, 603; see Matter of McMillian v Rizzo, 31 AD3d 555, 555). "Therefore, it should not be set aside unless it lacks a sound and substantial basis in the record" (Matter of Thomas v Thomas, supra; see Matter of Keylikhes v Kiejliches, 25 AD3d 801, 801).

Here, the death of the children's mother provided the maternal grandmother with automatic standing to seek visitation, although it did not guarantee any such award (see Domestic Relations Law § 72[1]; see also Matter of Principato v Lombardi, supra at 602). The evidence established that the maternal grandmother enjoyed a meaningful relationship with the children. Additionally, the existence of animosity between the maternal grandmother and the father was not a proper basis for the denial of visitation to the maternal grandmother (see Matter of Weis v Rivera, supra). The Family Court improvidently exercised its discretion in finding that it was not in the best interests of the children to have any visitation with their maternal grandmother. We therefore remit this matter to the Family Court, Suffolk County, to set up a schedule of appropriate supervised visitation.

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The National Marriage Project at Rutgers University put out a fascinating study debunking The Top Ten Myths of Divorce.

Perhaps the most interesting portions of the study, address the issues of divorce and children. The study shows, not surprisingly, that divorce has deep, long lasting emotional effects on children, and increases the likelihood that their future marriages will end in divorce. The report concludes that except for in the case of high conflict homes, children are better of living in a home with unhappy parents than seeing their parents divorce.

I have excerpted the relevant portions here:

Divorce increases the risk of interpersonal problems in children. There is evidence, both from small qualitative studies and from large-scale, long-term empirical studies, that many of these problems are long lasting. In fact, they may even become worse in adulthood.

Marriages of the children of divorce actually have a much higher rate of divorce than the marriages of children from intact families. A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents. In the children of divorce, the sense of commitment to a lifelong marriage has been undermined.

A recent large-scale, long-term study suggests otherwise. While it found that parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, so does the fact of going through a divorce. In examining the negative impacts on children more closely, the study discovered that it was only the children in very high conflict homes who benefited from the conflict removal that divorce may bring. In lower-conflict marriages that end in divorce—and the study found that perhaps as many as two thirds of the divorces were of this type—the situation of the children was made much worse following a divorce. Based on the findings of this study, therefore, except in the minority of high-conflict marriages it is better for the children if their parents stay together and work out their problems then if they divorce.

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It seems to be just common that when negotiating any type of marital agreement, it is important to make sure that your every intention is clearly spelled out, even if the intent seems obvious to you..  Such is the lesson of recently decided case of Genovese v Axel.

In Genovese:

[T]he parties executed a prenuptial agreement dated April 17, 2000, whereby they agreed to waive their respective rights of election pursuant to EPTL 5-1.1-A. Following the waiver provision, the parties agreed, in clause 1(ii), that "[n]otwithstanding anything to the contrary" they would each "execute their respective Last Will & Testament[s] leaving a minimum of 33 1/3% of their gross estate to each other."

Needless to say, a few years later the parties divorced. Following the divorce, the ex-wife sought to have her husband name her as a one third beneficiary of his estate.

It seems obvious that it was the the couple’s original intent  to make reciprocal obligation to name the other as a beneficiary of his/her estate conditioned upon the continuation of the marriage.  Nothing in the opinion indicates that the parties wished to bind  their post divorce estates.  Unfortunately, , the parties had to spend thousands in legal fees and go as far as the Appellate Division to reach this result.

Where an agreement is clear and unambiguous on its face, as here, the intent of the parties is gleaned from the four corners of the writing as a whole with a practical interpretation of the language employed so that the parties' reasonable expectations are met (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162; Rainbow v Swisher, 72 NY2d 106, 109; Sunrise Mall Assoc. v Import Alley of Sunrise Mall, 211 AD2d 711). In examining the agreement, the court should consider the relation of the parties and circumstances under which it was executed. "Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby" (Kass v Kass, 91 NY2d 554, 566 quoting Atwater & Co. v Panama R.R. Co., 246 NY 519, 524).

The one-third provision appears under the heading "release of rights," in which the parties employed language such as "surviving spouse" and "deceased spouse," which evidences their intent that the parties remain married in order to receive a one-third disposition under each other's will. The plaintiff contends that the use of the phrase "notwithstanding anything to the contrary" demonstrates that the parties intended the one-third provision to remain in effect regardless of their marital status. We disagree. That language modifies the previous provision, in which the parties waived the spousal right of election. The plaintiff's interpretation would require this court, under the guise of interpretation, to imply a provision that the parties chose to omit (see Karmin v Karmin, 19 AD3d 458, 459), namely that the obligation contained in clause 1(ii) would extend to one who was no longer a spouse.

The morale of the story, when drafting an agreement, make sure that the agreement is as clear as possible.  Do not trust anything to extrinsic or common sense interpretation . If there is a dispute over the agreement, rest assured, the person with whom you have a dispute will have a different recollection of the basis of the bargain.  

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A billboard ad depicting a headless male torso and tanned female cleavage heaving forth from a black lace bra with the caption “Life is Short, Get a Divorce” is getting a lot of reaction on the blog-o-sphere today. 

This ad, placed by a Chicago divorce firm (according to ABC News-an all female firm) is properly garnishing criticism.   While an attorney advertising his/her services is not objectionable, inducing (or “seducing”) a client to divorce is. While it is doubtful that a picture of a scantily clad woman would alone cause a man to leave his wife, it is not the divorce lawyer’s job to tempt the client by showing him that “grass may be greener” outside of marriage.

This ad does not promote the legal profession, highlight the firm’s advocacy skills or evidence the firm's legal knowledge. It does not even describe what services the law firm offers. Instead, it plays on sex and demeans the profession. It is precisely this type of undignified and unprofessional ad that caused the New York Court’s to regulate attorney advertising.

Unfortunately, the ad worked. The ad is getting noticed and the law firm’s is getting publicity.

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After recently staying a decision after trial so as to urge the New York State Legislature to adopt a no-fault divorce bill, Justice Robert Ross, in another case, denied a husband a divorce because he failed to prove that his wife had constructively abandoned him.  

From the account of case appearing in Newsday, the wife opposed the divorce solely to gain advantage on the economic issues.    This is the very evil no-fault divorce is intended to cure. 

It is not uncommon in cases where neither party has a fault grounds for divorce, for one party to oppose the divorce, not because he/she desires to preserve the marriage, but to extract some concession from his/her spouse-the end result-more expensive and more acrimonious divorces,   In other words, absent no fault divorce, freedom has a cost.

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Legislation to shorten the one year separation grounds for divorce to three months was approved by the Judiciary Committee of the New York State Assembly last week.

The current law requires parties to leave separate and apart pursuant to a written agreement for one year in order in order to state a grounds for divorce.   The new law would shorten this period to three months.

Critics have aptly pointed out that this is not a “no-fault” divorce, in which the parties would only need allege that the marriage has irretrievably broken down with no prospect of reconciliation.   Instead this proposal requires that the parties enter into a written agreement which resolves all the issues of the divorce including equitable distribution, child custody and support.

This bill is not, however, a substitute for no-fault divorce.   A no-fault divorce is needed for those cases in which there is an absence of marital fault (e.g., no one is guilty of adultery, abandonment or cruel and inhuman treatment), and the other issues of divorce (equitable distribution, child custody, etc) require a judicial determination.

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In a rare decision, a Nassau County judge challenged the state legislature to pass a bill adopting no-fault divorce.   Justice Robert Ross in Molinari v. Molinari stayed rendering judgment in the parties’ fault trial until the New York State legislature considers the issue of no fault divorce.

The decision highlights the fact that New York is the only state without a no-fault divorce.  The Judge then details the cost,  expense and prejudice endured by Mr. and Mrs Molinari, a typical estranged couple,  resulting from the absence of a no-fault divorce.   

This case vividly illustrates the direct impact that New York's fault-based statute has on the manner and speed in which matrimonial matters proceed. Here, while litigating the issue of grounds, these parties were relegated to motion practice, amendment of pleadings, contemplation of withdrawal of the action and seeking a divorce in another jurisdiction, filing jury demand, conferences, and ultimately, trial of the matter. The proceedings relating to fault endured since January 2005.

Jeffrey Molinari, sought a divorce from his wife, Paula, based on one of the most commonly used grounds for divorce -- "constructive abandonment," or the refusal of one spouse to have sex with the other for at least a year. In the 49 other states, Ross urged, "Mr. Molinari would be entitled to be granted a judgment of divorce, on these limited facts alone."

Justice Ross aptly pointed out that the significant cost and delay, resulting from grounds  trials, preclude access tor courts and make the process of divorce  wholly more acrimonious by fostering and encouraging the embellishment of a spouse's wrongdoing as to grounds.

As Newsday reported, Justice Ross reserved the right to decide later on the case if the legislature failed to act on the bill. He said that other issues in their case -- including disputes over finances -- will move ahead. He acknowledged that his stay on the fault issue was aimed at sending a message to the legislature.

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Robert Ambrogi in his Law.com Network Blog details the case of a man who learned during his divorce, that he was not the father of a child born during the marriage.   Notwithstanding the fact that he was not the child’s biological father, he was ordered to pay child support.  

. . . .through a DNA test 16 months after his divorce, Richard Parker learned that someone else had fathered the 3-year-old boy. Facing court-ordered child-support payments of $1,200 a month for 15 years, he immediately turned to the courts, claiming fraud by his wife. His case took him all the way to the Florida Supreme Court, which issued its decision in February in Parker v. Parker. Williams tells what happened:

"The Florida justices ruled 7-0 against Richard Parker. The Court ruled Parker must continue to pay $1,200 a month in child support. Parker's child support payments will total more than $200,000 over 15 years to support another man's child. Unfortunately, however, Florida has a one-year statute of limitations to prove fraud after a divorce, and Parker didn't file in time."

So, what would happen if this was a New York case?   The man would be responsible for child support.  A recent line of cases provide that where a “father,” who acknowledged or in any way accepted paternity of a child he later learns was not his, will be equitably estopped from denying paternity for child support purposes.  

While this may lead to unfair cases for the “wronged” father, the underlying policy is intended to protect the psychological and emotional well-being of the child.  Certainly, the child would be devastated if he/she is disavowed by his “parent.”

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In a fascinating article published in the New York Times, Tyler Cowen, a professor of economics at George Mason University and co-author of a blog, the Marginal Revolution, explores the benefits of what he terms, unilateral divorce.   His conclusion, unilateral or no-fault divorce leads to happier but perhaps, less committed marriages.

In the United States, the availability of divorce has increased with unilateral divorce, which allows either member of the couple to dissolve the union. The change has been associated with lower rates of female suicide and domestic violence, and fewer wives murdered by their husbands. Unilateral divorce shifts the bargaining power to the person who is getting less out of the marriage and thus is most likely to leave. The partner getting more from the marriage has to work harder to keep the other person around, which can be good for the marriage and good for the couple. In other words, unilateral divorce benefits victims and potential victims.

When unilateral divorce was adopted, divorce rates rose sharply in the two years that followed, reflecting a pent-up demand for divorce. But after 10 years had passed, the divorce rate went back to normal or in some cases, compared with states without unilateral divorce, it had fallen further.

In fact, the divorce rate for married couples peaked in the United States in 1979, when it was 22.8 per thousand married couples per year. Since then it has continued to decline, reaching 16.7 divorces per thousand married couples in 2005.

If matrimony as an institution has declined, it is because fewer people are marrying in the first place. Marriage is at its lowest rate in recorded American history, and marriages are shorter than before. If fewer weddings mean fewer divorces, individuals are probably making better matches. Perhaps there should have been fewer marriages in the first place.

One group more likely to be married today than ever before is Americans over age 65. Men are closing the life expectancy gap with women, and that means fewer widows, a comforting thought. The elderly are the most likely to require marriage for assistance with medical problems, not to mention sex and companionship.

Consistent with economic reasoning, marriage is growing among groups who benefit from marriage the most. Furthermore, the women least likely to remarry are highly educated with a high income, namely those who are best able to handle single life. Women with the least resources are the most likely to remarry.

Unilateral divorce does make for less committed marriages. In states that allow unilateral divorce, a spouse is 10 percent less likely to be putting the partner through school. The obvious fear is that once the costly education is over, the beneficiary will leave the marriage. In states with unilateral divorce, adjusting for the relevant demographics, a couple is 6 percent less likely to have a child. Again, couples seem to be making decisions with the prospect of divorce in the back (or the front) of their minds. That may be one reason for the surge of female interest in higher education and advanced degrees.

Often, earlier approaches to marriage were based on the idea of a division of labor; the man would earn the income and the woman would take care of the household. But as female earning power increases, this arrangement makes less sense. Men and women are more likely to pair off on the basis of similar education, similar interests and similar tastes in consumption. In other words, modern marriage is more fun.

And what about the children? Don’t they suffer in happiness and future prospects from divorce?  Maybe so, but Mr.  Wolfers and Ms. Stevenson do not think the question has received a final answer. To be sure, it is better for a child to have happily married parents, but when the family is dysfunctional anyway, we don’t know whether divorce harms the children. In any case, the number of children in a given divorce is, on average, declining. In 1968, the average divorce involved 1.34 children. By the 1990s, this had fallen to an average of less than one child per divorce. Since many people put off having children, and the average marriage is shorter, many divorces arrive before the children do.

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The martial home is often the most valuable asset to be dealt with in a divorce.

Generally, one of three things can happen to the martial home as part of the divorce: it is sold on the open market, one of the spouses buys out the other spouse’s interest, or one spouse is allowed to occupy the home for a period of time, until, for instance, a teen age child graduates from high school, and then the home is sold.

If the home is sold, the value to be distributed is easy to ascertain- it is the net proceeds remaining after all the costs associated with the sale have been paid.   The costs of sale include transfer taxes, broker’s commissions, the costs to satisfy the outstanding mortgage and, of course, legal fees.

If one spouse is to remain in possession of the home, the property needs to be appraised.  The appraiser, by comparing the particular home to others in similar condition and location, offers an opinion as to the property's value and the parties or the Court will determine the parties' equitable shares.

The New York Observer ran an informative piece detailing the process of selecting a real estate  appraiser and the problems they encounter in  valuing real estate in a contest divorce. 

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In a case where a husband abandoned his wife and children and failed for nine years to pay any child support, a Court ruled it was appropriate to set off the husband’s unpaid child support obligation against his interest in marital property.   Since the husband failed to pay child support for nine years, his interest in the martial home was set off against the amount of unpaid support. As a result, the Wife was entitled to full possession and title to the marital home. 

 In the case Pritchett v. Pritchett ( N.Y.L.J. 4/9/07(subscription required), Justice Darrell L. Garvin ruled that the husband’s abandonment of his family and failure to contribute any child support created a “substantially unequal burden on the [Wife] to the benefit of the [husband]. This benefit of the non-contributing spouse constituted an unjust enrichment which should be rectified.”

Applying the child support guidelines to the Husband’s income at the time he abandoned the family, the Court calculated the amount of unpaid child support arrears and the husband’s share of the child care, educational and medical expenses even though the Wife had not previously obtained an order requiring the payment of support.   

Since the child support arrears exceeded the value of the Husband’s equitable interest in the marital home, the Court transferred title to martial home to the Wife. 

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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 you own or rent? Do you own art, antiques, jewelry or collectibles? How were they acquired? Did you or your spouse purchase them or were they a gift? When were they acquired - before or during the marriage?

 Are you and your spouse self supporting? Will you or your spouse require maintenance? What will your post divorce lifestyle be like?  You will need to make a budget to determine your financial needs after divorce.

Do not be discouraged if you cannot make this assessment because documents are missing or you do not understand complex financial statements.   Missing documents can all be “discovered” during the divorce. Experts – lawyers, accountants, appraisers and financial planners- can be retained to make sense of the family finances.

 By preparing, you are yourself and your counsel with the tools necessary to protect and assert your legal rights.

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Health News Digest  reports that there may be  health and financial costs to  divorce that  do not reveal themselves until long after the divorce is complete.

It is widely known that because of the economies of scale, many  families going through a divorce and those with children, in particular, will face some diminution in their standard of living  after the divorce.  The reason, the income that used to support a single home when the marriage was intact, must now support two households.  The same income must now pay two rents or mortgages, stock two refrigerators, pay two cable bills and the list goes on.   There may not be enough resources to pay for all the things that intact family took for granted.
 
However, the article is interesting because it goes beyond the obvious costs and shows some of the hidden costs of divorce.

To this must be added duplicate items for the children: when the bicycle goes to one house, a second one will have to be purchased for the other house because neither parent will want to be seen as less generous and caring than the other, and this is true for all items, essential and non-essential alike; clothing, beds, towels, doll houses, video games, school supplies, and so on, plus the time and money required to replace, repair and upgrade these items. Certain expenses, such as daycare costs and doctor visits, may be divided more or less equally (assuming both parents are willing and able to pay, which is oftentimes not the case), but for daily living expenses, a safe rule of thumb might be to count the number of kids you have and multiply by two—then add the costs of a second home.

And if, for example, the parents live an hour apart and transfer their children back and forth thrice weekly, that adds up to another thirty hours of driving time per month, plus gas, and related expenses, not counting delays, schedule changes, forgotten items, extra pick-ups and drop-offs, and extracurricular activities that were previously managed through some sort of division of labor, but must now be done separately. In varying degrees, this holds true for most other household activities—efficiency is lost when spouses must function without the support of each other—and as the old saying goes, time is money.

This change in our financial picture, however, does not stop at the home front, but reaches into the workplace as well: the U.S. government reports that half of all single mothers receive public assistance, while divorced men earn between 10% and 40% less than their married counterparts having similar educations and backgrounds. It should come as no surprise then that at the age of retirement, divorced couples have a significantly lower net worth than those who remained married. After divorce, the yellow brick road quickly loses its luster, and life is rarely easier.

Of course, here we’re just talking about money matters, and as we all know, divorce involves a lot more than financial losses. Divorcés also experience significantly higher numbers of early death of almost all the major diseases, as well as higher rates of in and out-patient psychiatric care, suicide, physical abuse, accidental injury, and drug and alcohol use. But those are other issues. Here we’re focusing only on dollars and cents. One hurdle at a time.

In summary, although divorce leaves us in a highly emotional state, we should be careful not to let those emotions rule our thinking, particularly those that blind and bind us to the grim consequences of such decisions. Before making that call to an attorney, or presenting your spouse with your decision to leave, make sure that you’ve taken the time to ask yourself if divorce is really worth the financial price you will pay. If it is, then fine, you can move on to the other matters mentioned above. But do you homework first—and make sure that your pencil is sharp.

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In January, I wrote about the Taubs, who put up a wall and divided their home in two during the divorce.

Well, the jury spoke and denied Mrs. Taub her divorce.  (You can request a jury trial on the issue of grounds in New York). 

As detailed in Daily News:

In a divorce battle that has gotten more and more bizarre, Chana Taub asked a Brooklyn Supreme Court panel to dissolve her 21-year marriage to Simon Taub. Both listened in stunned silence Tuesday as the jury said they could not separate. . .

But in keeping them married, the six-member jury rejected Chana's stated grounds for divorce, that Simon had subjected her to "cruel and inhuman treatment."

The wacky case began two years ago, when Chana said she wanted out of the marriage and Simon refused.

Although most divorce cases are decided by judges, Chana Taub sought a jury trial because she said she thought she would get a fairer hearing. 

The real-life "War of the Roses" got so nasty Simon Taub built a wall dividing the Hasidic Jewish couple's Borough Park brownstone to keep them apart. 

During the 10-day trial, Chana Taub testified that she needed more than a wall to protect her against his abusive streak. She said he has attacked her with everything from a telephone to a treadmill during their hellish 21-year marriage. Their four children testified against him.

Tuesday's astonishing jury decision came after just five hours of deliberations, leaving the warring couple speechless, albeit temporarily. ...
Simon Taub's lawyer Abe Konstam called the case, "a colossal waste of judicial time."

He said the case would have easily been settled if New York allowed married couples to split based on irreconcilable differences, like most states.

Yesterday, Chana Taub made a new allegation that her husband punched her in the eye.   when they  returned to their divided house after the jury's decision Tuesday evening.

"He was yelling, 'I'm going to break down the wall. I'm going to get rid of her. I'm going to get the whole house,'" said Chana Taub, sporting a bloodshot right eye.

She claimed her husband got rough when she tried to serve him with a restraining order.

But Simon Taub denied the fresh allegations of abuse, insisting they were a continuation of a smear campaign his wife began during the trial. . .

He raced to Brooklyn Family Court yesterday to get his own order of protection - while his wife was in the same courthouse trying to get a judge to look at her shiner.

But yesterday, Simon Taub said he was ready to "negotiate" and  that the lawyers should work it out.

If New York did not force divorcing parties to prove grounds, but instead allowed for a no-fault divorce, cases like this, where the parties are in a "dead" marriage, but are compelled to remain married, would not occur.

While this jury probably gave the parties what they really deserved (being stuck to each other), the result is a terrible waste of judicial resources and time. The parties wasted precious Court trial time and now are further burdening the Family Court with their suspect petitions seeking orders of protection.

All this could have been avoided if New York recognized irreconcilable differences as a basis for divorce.

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After taking a short, but much needed vacation, I am back and ready to blog.

The Family Law Prof Blog reports that "A widowed father lost his bid Monday to have the Supreme Court decide whether grandparents should have court-ordered visits with his son. The justices refused to get involved in the dispute between Shane Fausey, a federal-prison guard in Pennsylvania, and his dead wife's mother. Cheryl Hiller won rulings in Pennsylvania courts giving her regular visits with Fausey's son, Kaelen, over the father's objection. Grandparents do not have to prove that being kept away would be harmful to their grandchildren in order to get court-ordered visitation, the Pennsylvania Supreme Court said."

Fausey said the court ruling violated his constitutional right to make parenting decisions, an issue the  Supreme Court did not address.  State courts are divided on the issue. Twelve states prohibit courts from ordering grandparent visitation unless it can be shown that the child would be harmed by their absence, Fausey's lawyers said in court papers filed in the case Fausey v. Hiller, 06-863.

As I recently noted,  the New York Court of Appeals recently upheld the validity of  New York's  law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren.

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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 are indignant now that the shoe is increasingly on the other foot, says Carol Ann Wilson, a certified financial divorce practitioner in Boulder, Colo. "There's this sense of, 'What's yours is ours, but what's mine is mine,'" Wilson says. "My first response to that is, 'All these years we have been looking for equality; well, this is what it looks like.' I think women get angrier about having to pay than men do.

Just as some women object to men's request for spousal support, some men are particularly uncomfortable seeking it. Either they find it emasculating to ask, or they find the idea of receiving an allowance from their ex-wives humiliating, according to divorce attorneys.

As a practical reality, I have not seen  many cases where the husband seeks spousal support, though there really should not be a “legal” bar to their being granted support.  After all, the law is supposed to applied in a gender neutral manner.

However, because of systematic basis, the law has not always been applied in a gender neutral manner.  Indeed, until recently, how many men won custody of their children?  It was the conventional wisdom that there really  had to be something  wrong with a mother for her to have lost a custody fight. . 

Moreover, there may be a social stigma to a man seeking support from his wife.  Indeed, Forbes confirms that “Some men avoid the embarrassment by seeking a bigger bite of the marital assets instead of asking for alimony. Not only do lump-sum payments save them the humiliation of accepting monthly support, but they also reduce the ex-husband's taxes, since spousal support payments are taxed, while assets are not.”

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With a dedicated staff which includes a parenting coordinator and a family services coordinator, the Court is able to refer litigants to alternate dispute resolution programs, counseling, and parent education programs. Under the auspices of the Court, the parties are encouraged, for instance, to develop parenting plans.

According to Justice Robert Ross, the supervising judge of Nassau County’s Matrimonial Center, “The non-adversarial forum for parents to resolve their custody disputes, often expedites the resolution of a contested matrimonial cases.”

The New York Law Journal reports that the pilot program has been quite successful. Since the program was implemented five months ago, 16 of the 20 cases assigned to the program have settled.  The grateful litigants have written thank you letters to the court.

The Nassau County Courts should be commended for looking “out of the box” for a way to efficiently resolve divorces. Other jurisdictions, like New Jersey, have made parent education mandatory at the outset of a divorce. But in those cases where custody is not in issue, mandatory participation is a waste of time. 

What seems to make the Nassau County program effective is that it can be specifically tailored to the needs of the litigants. Still the question remains, will this program, which was limited to twenty cases, be as effective when it is expanded to the almost two thousand contested divorces filed in Nassau County last year?    

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With taxes due next month, Scott Sagaria in his  California Family Law Blog offers some useful tax tips to parties divorcing.  While Scott's blog is addressed  to California residents, the tax information is applicable nationwide.

When a couple is filing for divorce, but the divorce decree has not been finalized yet, they can still file a joint tax return. Once the divorce goes through, an ex-spouse can file the return as a head of household, if he or she has paid for over half the maintenance of the house and has a dependent living at their home for over half the year.

When two parents are divorced, only one of them can claim the $3300 dependency exemption for each child on their tax returns for 2006. The parent claiming the dependency exemption is also allowed a $1,000-per-child tax credit for children younger than 17 as long as their income is not above a certain figure.

Usually, it is the person named as the custodial parent in the child custody portion of the divorce decree that is allowed to claim the child as a dependent. If the divorce decree does not name a custodial parent, then the parent with whom the child has lived with the longest throughout the year is the custodial parent.

A non-custodial parent, however, can claim the exemption as long as the custodial parent signs a waiver promising not to claim the exemption.

If a non-custodial parent claims the exemption first and without the custodial parent’s permission, he or she could be given the exemption temporarily. However, once the custodial parent files the exemption and the IRS notices that a child’s social security number has been entered by two different taxpayers, then the tie-breaker rule would apply. This rule says that if two parents claim that a child is their dependent, the parent that the child lived with the longest during the year would get to claim the exemption. If the child had spent the same amount of time with both parents, then the parent that had the higher adjusted gross income would get the exemption. The parent who “wrongly” claimed the exemption would have to repay the tax, plus penalties and interest.

Regardless of who the custodial parent is, if the non-custodial parent pays for any of the child’s medical bills, these costs can be a deduction. Child-care credit for work-related expenses can be claimed for children younger than 13.

The spouse who pays alimony/spousal support can also receive a tax deduction for these payments, even if they aren’t itemized—along as the payment amounts are stated in the divorce agreement and made in cash. The spouse who receives the alimony must pay taxes on them. For child support, however, there is no deduction for paying them and no taxes paid by the recipient parent.
Assets transferred from one spouse to another during a divorce are not taxed. However, there will be a capital gains tax before the transfer and afterwards.

Now,  for the disclaimer -   You should certainly discuss the foregoing with your tax preparer.

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If parties do not wed, the engagement ring must be returned.   A engagement ring is a gift made in contemplation of marriage. The engagement ring is a conditional gift and if the marriage does not take place, the condition has not been satisfied and the ring must be returned. 

Despite this “golden rule,” it is sometimes necessary to litigate to compel the return of the ring. Indeed, I had to file one such action this week.

With only one exception, the reason the parties failed to marry is irrelevant.

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Today, I had the pleasure of exploring the state of family and divorce  law in an online interview on the Legal Talk Network

Here is description of the interview:

The idea of marriage and divorce is not what it was years ago for many people. On Lawyer 2 Lawyer, we look at divorce law today and explore the world of marriage and how it has changed over the years.  Law.com bloggers and co-hosts, J. Craig Williams and Robert Ambrogi welcome experts, Attorney Sherri Donovan, owner of the law firm, Sherri Donovan & Associates, P.C. and author of the published book, "Hit Him Where It Hurts-The Take No Prisoners Guide To Divorce" and Attorney Daniel E. Clement, principal in the Law Offices of Daniel E. Clement, and writer of the blog entitled, “New York Divorce Report, New York’s Family and Law Blog.”

The entire interview can be heard at either of the links below:

MP3:
http://websrvr82il.audiovideoweb.com/ny60web16519/LTN/C2C/C2C_022807_Divorce.mp3

Windows Media:
http://interface.audiovideoweb.com/lnk/avwebdsnjwin4287/LTN/C2C/C2C_022807_Divorce.wma/play.asx

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It seems that “No-Fault” divorce law is not coming to New York any time soon. On the other hand, New York is embracing an alternative method of divorce, collaborative law. 

As reported in the New York Times, “Chief Judge Judith S. Kaye, in her annual address on the judiciary, announced plans to create a new family law center in New York City that is intended to make divorce faster and cheaper for couples who want amicable settlements.”

Under the [collaborative law], lawyers still represent both sides, but they agree not to continue representing their clients if the negotiations fail and the matter ends up in court. That way, advocates of the process say, the lawyers are deprived of a financial incentive for failing to resolve the matter amicably. The participants also agree not to go to court for a certain period of time while the alternative process is under way.

“The basic premise behind it is that by providing folks with access to lawyers who are knowledgeable in matrimonial law, who are committed to negotiating on behalf of their clients an amicable settlement without being stuck in the adversarial environment, they are able to limit expenses and foster a more collaborative process,” said Daniel Weitz, a state coordinator for the Office of Court Administration.

Critics of the practice had limited appeal because many people in the midst of divorce want to maintain the threat of going to court while negotiating settlements.

Perhaps it is possible to have the best of both worlds; alternative dispute methods can be implemented as part of a contested divorce.   In New Jersey, for instance, parties to a contested divorce must go before an early settlement panel to attempt settlement. The panel consists of volunteer divorce lawyers, who give their view of a case after hearing the relevant facts and issues. The fresh perspective of neutral experts oft helps broker settlements.   If the case is not settled at the early settlement part, the court can order financial mediation. 

Rather than create a competing forum for divorce, New York should follow the lead of other states, and embrace alternative dispute resolution as part of the contested divorces process.   

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The Court of Appeals in Matter of E.S. v P.D., unanimously upheld a constitutional challenge to New York’s grandparent visitation law.    

In upholding the New York Law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren, the Court distinguished the New York law from the overly broad Washington law struck down by the United States Supreme Court in Troxel v Granville (530 US 57 [2000]).

The statute invalidated in Troxel permitted "'[a]ny person' to petition for visitation rights 'at any time,' and authorize[d] that court to grant such visitation rights whenever 'visitation may serve the best interest of the child'" (Troxel, 530 US at 60 [quoting Wash Rev Code § 26.10.160(3) (1994)]). The Washington statute explicitly applied a presumption in favor of grandparent visitation, placing on the parent "the burden of disproving that visitation would be in the best interest" of her children.

The New York Statute, on the other hand, presumes that the parent’s wishes represent the best interests of the children.  The Court noted that:

. . . 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. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. "It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement" (Lo Presti v Lo Presti, 40 NY2d 522, 526 [1976]).

While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child's best interest for his relationship with grandmother to continue — e.g., the reasonableness of father's objections to grandmother's access to the child, her caregiving skills and attitude toward father, the law guardian's assessment, the child's wishes — before making a judgment granting visitation.

Section 72(1) of the Domestic Relations Law states that

"[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child."

Section 72(1) "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek [*5]visitation with a minor grandchild" (Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004] [internal quotation marks and citation omitted]). When grandparents seek visitation under section 72(1), the court must undertake a two-part inquiry. "First, [the court] must find standing based on death or equitable circumstances"; and "[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild" (Matter of Emanuel S., 78 NY2d at 181

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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 stricter enforcement of divorce-court decrees. The report said that in two years of hearings around the state, dozens of the 100 or so witnesses told of waiting years for orders to be issued, only to find themselves waiting months and years more for them to be obeyed.

“After people have gone through the time and money and exasperation, and they get an order that is not enforced, it’s an injustice,” said Sondra Miller, a recently retired appellate judge who was the commission’s chairwoman. “There were many, many, many complaints about this; that there is a lack of enforcement, a need for sanctions. And jail is certainly a sanction available to the court.”

Sentencing someone to jail for contempt of court was always an option, but one of last resort.    

It is a drastic remedy,” [Justice Ross] said. “But what is to be done when the law is not being complied with? There is an alarming frequency of contempt.” Judge Ross declined to discuss any current case. . . .but said that he would jail only someone who “makes a conscious decision not to comply with a court order.”

Maxine Last, a Long Island divorce lawyer who has struggled for years with cases that drag on for lack of enforcement, said of Judge Ross: “I wish there were many more like him,” adding that besides jail, “unfortunately, there is no incentive for the parties to comply.

Certainly, the “losing” spouse must make a decision, obey court order or lose your freedom. However, as one jailed husband pointed out: “At least while I’m here [in jail], everything’s on hold,” he said, waving a thin arm under the cold, fluorescent light. “She’s not getting richer off me.”

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Valentine’s Day, for most, is the most romantic day of the year. Thanks to Hallmark, we buy the ones we love gifts and send them flowers. The problem, if you are married and sending the flowers and gifts  to someone other than your spouse, you may just get caught.   

Poynter Online details how , particularly on February 14, cheating spouses get caught:

The Atlanta Journal-Constitution found private detectives who said Valentine's Day is a big deal for cheating spouses:

Feb. 14, these investigators joke, is their Super Bowl of Surveillance.

"Eighty percent of cheating spouses will try to spend part of the day with the other person," said Jimmie Mesis, editor of the trade journal PI Magazine.

Ruth Houston -- founder of InfidelityAdvice.com and author of "Is He Cheating On You?" -- says she normally discourages the use of private investigators, but makes an exception for Valentine's Day.

"I've seen too many people spend hundreds of thousands of dollars, only to come up empty except for a receipt," Ruth said. "But if someone's cheating, they are going to make contact on Valentine's Day, either to give a gift or receive one."

Jeanene Weiner is the founder of Busted Confidential Investigations, an all-woman outfit in Marietta boasting the grrl-power motto "Where Intuition and Information Meet."

Her Valentine's Day will begin early, because she knows from experience that many of the cheaters will schedule a breakfast or lunch-hour tryst.

"This way, they get to go home after work and spend a romantic evening with the person they're married to, and no one suspects a thing," she said.

Last year, The Wall Street Journal found:

The Institute for Divorce Financial Analysts, a Southfield, Mich., trade group of professionals trained to review divorce settlements, says filings typically spike in mid-February. "It's so consistent I can't deny a pattern," says Natalie Nelson, a divorce financial analyst in Boulder, Colo.

Indeed, divorce lawyers say they frequently turn up evidence of Valentine's Day duplicity when they review financial documents. Credit-card receipts from restaurants or purchases at fancy jewelry stores are the most common giveaways, says Heidi Harris, a partner at New York law firm Sheresky Aronson & Mayefsky.

New York attorney Raoul Felder concurs: "The kinds of purchases documented for Feb. 14 give an indication of how serious the relationship is," he says.

Obviously, the way not to get caught -don't have an adulterous relationship.