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.

"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.

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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.

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It comes as no surprise, given the absence of privity of contract, that you cannot sue your spouse's attorney for legal malpractice in a divorce action according to the New York Attorney Malpractice Blog.   However, Andrew Lavoot Bluestone reports that fraud and deceit may be available remedies:

Here is a rare circumstance when you may sue the opponent's attorney.  This particular husband failed; the opening remains, however.

Mars v Grant
2007 NY Slip Op 00576
Decided on January 30, 2007
Appellate Division, First Department

"Plaintiff, who is also the plaintiff in a divorce matter in which his wife is represented by defendants herein, failed to support his pleading of a cause of action under Judiciary Law
§ 487 with allegations that adverse court rulings in the matrimonial action were based on acts of deceit by defendant attorneys (see Melnitzky v Owen, 19 AD3d 201 [2005]), or allegations pleading the required elements of fraud (see Manna Fuel Oil Corp. v Ades, 14 AD3d 666 [2005]), including detrimental reliance (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 86 [2000]). The failure to plead detrimental reliance is also fatal to plaintiff's cause of action for notary liability under Executive Law § 135 (Rastelli v Gassman, 231 AD2d 507, 508 [1996]), which, in any event, is pleaded in conclusory terms without any specificity. "

It seems to me that it would be very difficult to sustain a case of fraud or deceit against an adversary’s counsel. The lawyer would have to have done something real stupid, like falsify a bank statement or some or similar financial document upon which you justifiably relied. 

A litigant should be on notice that papers prepared by counsel for his/her spouse are intended to advance a case against you. A litigant has a right to discovery of all material and relevant information. The litigant can and should verify counsel’s factual representations.  For this reason, I am not sure any reliance on documents prepared by an adversary’s attorney is ever justified.

Finally, I am not sure what the measure of damages would be.   It seems to me that if a fraud was perpetuated on a court, the judgment should be set aside as would any agreement procured by fraud. Perhaps the element of damages would be the legal fees incurred because of the fraud.

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J. Benjamin Stevens in his South Carolina Family Law Blog  highlights  some of the biggest financial mistakes divorcing couples can make.   I have taken the liberty of reproducing it here:

Divorces can be complicated and messy, both from a personal and a financial standpoint.  Forbes  published an article a couple of years ago which listed financial mistakes that everyone should try to avoid.  Here is their list, with my comments about each point listed afterward:

• Having unrealistic expectations. Parties often forget that their living expenses typically double when they separate.  The same income(s) now must support not one, but two households, and it is not uncommon for things to get tight for a period of time.
  
• Not communicating.  It is extremely important that clients give their attorney all of the necessary information about their case, and not didn't seem that important can result in disastrous consequences for the clients if their attorney is blindsided with them at trial.
  
• Getting into an endless battle. Some divorcing spouses fight in Court because they want to fight.  Either they can't get past their own emotional hurt from the divorce itself, they want to make their spouse's life miserable, or they just enjoy turmoil, stress, and fighting.  Parties would be well served to fight only those issues which truly need to be fought and act reasonably throughout the process.
  
• Getting hung up on the numbers.  It is important for the marital estate to be divided fairly between the parties, which generally means an approximately equal distribution.  However, there will always be some assets which would be better going to one spouse than the other, and in some cases it makes sense to use a different distribution to accomplish other necessary goals.  For instance, one spouse may benefit from taking less of the marital estate in exchange for a larger amount of spousal support (alimony).
  
• Focusing on the present and not on the future.  The financial issues in a divorce affect both parties long after the divorce is over.  Parties should realize that when they are attempting to get as much as they can by way of assets that there are often debts and other expenses that accompany them.  It makes no sense to fight to get something that you truly can't afford to keep in the long run.
  
• Forgetting to assess tax.  Many issues in divorce cases have tax consequences, and many of those do not show up until after the fact.  Examples can include alimony payments,  dependency exemptions, and capital gains issues. Parties are well served by having an accountant available to discuss these issues before it's too late.
  
• Overlooking important .  It is important to make sure that everything in your divorce case is addressed and thoroughly analyzed by your attorney.  For instance, are you sure that your spouse doesn't have a retirement account with his employer and/or are you sure that the balance is what he/she says it is?  Let your attorney obtain the necessary information directly from the source to verify it authenticity and accuracy.
  
• Failing to untangle all joint finances.  The sooner you can separate yourself financially from your spouse, the better off you will typically be.  If your spouse fails to make a timely payment on a joint debt, that stain can show up on your credit report.  Likewise, you may still be liable to the lender if your name is on that account and your spouse doesn't pay.
  
• Failing to take into account the amount of time you'll to get your career back on track.  In many marriages, one (or both) spouses have made career sacrifices -- either for each other or for their children.  In these situations, it takes time for that spouse to be in a position to earn an income comparable to the other spouse, if ever.  Keep this in mind when you are going through a divorce, because in most cases, the parties do not have an equally financial standing at the outset.

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I will be speaking at a Continuing Legal Education Program at the New York City Bar on Wednesday, February 7, 2007, in a seminar entitled, “Blogs The Wave of the Future For the American Lawyer: Creation, Use and Ethical Considerations.”  

Joining me on the panel are Kevin O’Keefe  of LexBlog and Troy Rosasco.

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            There is probably no easy or correct way to tell your children that you and your spouse are separating or divorcing.  It would be an understatement to say that divorce will have a devastating impact on their emotional and psychological well-being.   But, how parents inform their children and negotiate future parenting responsibilities affect how children will react to the news.

            Dr. Marshall Colt gives parents several common sense tips to addressing the issue with their children:

• It’s best to tell your children together, simply, honestly and directly.
• Don’t go into detail about why or bash your spouse.
• It’s okay to reveal your sadness, while allowing them to also show their feelings.
• If you’re separating and not sure about divorce, don’t make predictions or promises you can’t keep.
• Try to keep things as consistent as possible.

            Going forward, encourage the relationship with the other parent. Though you and your spouse are separating, neither of you are divorcing the children.  Children should be encouraged to maintain their relationship with both parents.   If your spouse is a “bum” let the children find this out for themselves. Do not indoctrinate or impose your views on them. Do not attempt to alienate your children from your spouse. Not only can this have a negative financial impact, it may be you that the children end-up resenting.

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             Leaving New York, as perhaps the only state not to have  a "No fault" grounds for divorce, New Jersey adopted irreconcilable differences as a grounds for divorce.

            We can only hope that the New York lawmaker's will see the wisdom of changing the divorce law and enact a no-fault grounds for divorce in the current legislative session.

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Awhile back, I posted a humorous  piece about a couple fighting for possession of a house as part of a divorce.  But proving the adage that the truth is stranger than fiction, I found this article in Newsday:

Like two Cold War adversaries, Chana and Simon Taub are separated by a wall built down the middle of their home to keep the bickering spouses apart.

The divorce case, which has been staggering through the courts for nearly two years, has been dubbed Brooklyn‘s "War of the Roses," after the 1989 movie starring Michael Douglas and Kathleen Turner as a battling couple.

It‘s not as if the Taubs have no place else to go. For one thing, they own a place two doors down. But for reasons that include stubbornness, spite and their love of the home, both insist on staying in this particular house in Borough Park, a heavily Orthodox Jewish neighborhood.

Chana, 57, who claims her husband abused her, says she has as much right to stay as he does, if not more. "I need a house to live in and money to live on!" she says. "I worked very hard, like a horse, like a slave for him."

But an actual wall? That‘s a new one, says Barry Berkman, a New York divorce lawyer.

She gets the top floor, where the bedrooms are situated, along with the kitchen on the second floor. He gets the living room on the first floor and the dining room on the second floor. So that they don‘t run into each other on the second floor, the door between the dining room and the kitchen is barricaded on both sides.

Chana says that for two decades she served Simon like a virtual slave, putting up with physical and mental abuse that grew more severe over the years. She says she had to flush the toilet after him, and put on his socks and shoes for him. He became so violent by mid-2005 that she filed for divorce, she says.

Chana says she doesn‘t want much from her husband, mainly just alimony, child support and a fair share of property.

At one point during the transition, someone said Chana had 300 pairs of shoes trapped on Simon‘s side. Chana claims that is a lie Simon cooked up to make her look like the Imelda Marcos of the Orthodox Jewish community.

Simon retorts: "Maybe it was 299. I didn‘t count it."

Chana says that since Simon has returned, he has been monitoring her via video cameras. Simon says the surveillance goes both ways, and points to cameras on her side, though Chana claims she does not control those. Chana says Simon has bugged her phones. Simon says that‘s crazy — he doesn‘t care who she talks to.

Kimberly Flemke, a couples therapist in Philadelphia, says when spouses go so far as to refuse to leave a house while divorcing, it often means neither is ready to move on.

"It‘s clear that if they‘re going to go this length, there‘s still far too much connection," she says. "I would hope they‘d both go to therapy

In the end, the only thing that this couple will succeed in doing is perpetuating the misery.

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Continuing along the theme of sport superstars and their very public divorces, Jeffrey Lalloway in his blog, reports that:

Giants star Michael Strahan was ordered to pay his ex-wife $15.3 million -- more than half his net worth -- in keeping with the couple's prenuptial agreement.

Under the agreement, Jean Strahan was entitled to 50 percent of their joint marital assets and 20 percent of his yearly income from each year they were married.

The NFL star had contended he wasn't responsible for the 20 percent because his wife failed to ask for it every year. But state Superior Court Judge James Convery disagreed, ruling "the plaintiff is not credible in his claim that the defendant never asked for her separate funds." In addition to the $15.3 million, Convery awarded Jean Strahan hundreds of thousands of dollars in child support. The couple married in 1999.

"It pays to tell the truth, and I told the truth," Jean Strahan said in Saturday's New York Post. "I never asked for a penny more than the prenup that Michael and his lawyers wrote and made me sign. And all I ever asked for was that to be upheld

            Strahan or his attorneys probably should have read his agreement carefully. Many pre-nuptial, post-nuptial and separation agreements contain a “No-Waiver” clause that provides: “The failure of either party to insist in any one or more instances upon the strict performance of any of the terms of this Agreement by the other party shall not be construed as a waiver or relinquishment of such term or terms for the future.”   

The mere fact that Mrs. Strahahn did not seek to  enforce every provision of their agreement when the marriage was intact, in no way prevented her from seeking to enforce her contractual rights when the marriage soured.  

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Much ado has been made of  Jason Kidd’s allegations of domestic violence against his wife. Notwithstanding the celebrity factor, much of outcry is a product of the sexist preconception that there is no way a woman can abuse a man.  Moreover, how can a star athlete be a victim of domestic violence?

Any matrimonial attorney knows that domestic violence is not limited to husbands abusing their wives. Most practitioners could relate a war story where- in a husband was either emotionally, psychologically or physically abused by his wife.   

ABC News reports that experts on domestic abuse disagree on the number of men who are physically abused by their wives, but they agree that it is an underreported phenomenon.

There are few statistics regarding domestic violence against men.

A 1999 National Violence Against Women Survey sponsored by the Centers for Disease Control and Prevention indicated that while 1.5 million American women were beaten by a domestic partner or husband, 835,000 men — more than half that number — reported that they also were victims, a surprisingly high number to some.

Philip W. Cook, advocate and author of "Abused Men: The Hidden Side of Domestic Violence," is working to change what he calls "societal disbelief" in domestic violence against men.

"Attorneys don't encourage prosecuting it," Cook said. "Fred Lane of the … Carolina Panthers was shot and killed by his wife, and Tyrone Williams of the Green Bay Packers had his clothes slashed and tires slashed, and he needed to get stitches. … These were obvious victims. Just because a guy is a big athlete doesn't mean he's not a victim."

Lisa Mills, a feminist and author of "Insult to Injury: Rethinking Our Response to Intimate Abuse," agrees.

Mills notes that when women get violent, they often seek out tools and weapons to make up for what they lack in brawn.

"Men are beaten just as often as women, but women are injured twice as often," Mills said. "But the question really comes down to the validity of each claim."

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CNN.com offers a great primer on the pros and cons of negotiating a pre-nuptial agreements.  The pre-nup could prevent litigation in the event the marriage ends in divorce.  On the other hand, a difficult negotiation may end the relationship before a marriage takes place.

I have excerpted the article here:

Pre-nuptial agreements, are no longer an exclusive financial risk management tool for Hollywood couples.  Having seen what can happen when a high-profile relationship fails, increasing numbers of less famous couples are known to be opting for written agreements to protect the financial assets each partner brings to the relationship.

Some of the advantages of such an agreement are: to protect your separate property; support your estate plan; it defines what property is considered marital property or community property; it reduces conflicts and saves money if you divorce; it clarifies special agreements between you, and it establish procedures and ground rules for deciding future matters.

But, of course a prenup is not romantic.

As the artice points out, "Being engaged conjures up images of candlelit dinners and walks in the moonlight. Although marriage is a financial partnership as well as a romantic one, if you feel that discussing something as mundane as property and finances, as well as the possibility of divorce, will mar an otherwise beautiful time of your lives, you may not be candidates for a prenup

Pros

· A premarital agreement can protect the inheritance rights of children and grandchildren from a previous marriage.

· If you have your own business or professional practice, a premarital agreement can protect that interest so that the business or practice is not divided and subject to the control or involvement of your former spouse upon divorce.

· If one spouse has significantly more debt than the other, a premarital agreement can protect the debt-free spouse from having to assume the obligations of the other.

· If you plan to give up a lucrative career after the marriage, a premarital agreement can ensure that you will be compensated for that sacrifice if the marriage does not last.

· A premarital agreement can address more than the financial aspects of marriage, and can cover any of the details of decision-making and responsibility sharing to which the parties agree in advance.

· A premarital agreement can limit the amount of spousal support that one spouse will have to pay the other upon divorce.

· A premarital agreement can protect the financial interests of older persons, persons who are entering into second or subsequent marriages, and persons with substantial wealth.

Cons

· The agreement may require you to give up your right to inherit from your spouse's estate when he or she dies. Under the law, you are entitled to a portion of the estate even if your spouse does not include such a provision in his or her will.

· If you contribute to the continuing success and growth of your spouse's business or professional practice by entertaining clients and taking care of the home, etc., thus allowing him or her to focus on professional endeavors, you may not be entitled to claim a share of the increase in value if you agree otherwise in a premarital agreement. Under the laws of many states, this increase in value would be considered divisible marital property.

· It can be difficult to project into the future about how potential issues should be handled, and what may seem like an inconsequential compromise in the romantic premarital period may seem more monumental and burdensome in reality.

· A low- or non-wage-earning spouse may not be able to sustain the lifestyle to which he or she has become accustomed during the marriage if the agreement substantially limits the amount of spousal support to which that spouse is entitled.

· In the "honeymoon" stage of a relationship, one spouse may agree to terms that are not in his or her best interests because he or she is "too in love" to be concerned about the financial aspects and can't imagine the union coming to an untimely end.

· Starting a relationship with a contract that sets forth the particulars of what will happen upon death or divorce can engender a sense of lack of trust.

· As mentioned above, a contract can take the wind out of your emotional sails.

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While the marriage between a same sex couple was declared void, their separation agreement, which resolved all of their property and financial disputes, was declared valid  by Justice Phyllis Gangel-Jacob in Gonzalez v. Green.   Although the parties were “married” pursuant to a Massachusetts law that permits same sex unions, their marriage was void since such marriages are not recognized in New York.

Although the parties were not married, the Court declared that they were free to contract to resolve their respective property claims arising from the break-up of their relationship. While cohabitation without marriage does not give rise to property and financial rights, “Cohabitation does not disable the parties from making an agreement within the normal rules of contract law.”

Justice Gangel-Jacobs correctly noted that while the Court of Appeals’ holding in Hernandez v. Robles declined to recognize the validity of same sex marriages, it did not negate the existence of the same sex relationships or the reality that same sex relationships dissolve. As when married couples divorce, courts are called on to resolve disputes regarding the distribution of assets from same sex couples.   Litigants have always been encouraged to resolve their disputes without resort to protracted litigation

If “divorcing “same sex couples could resolve their property claims by written agreement, why should their settlement agreements not be deemed valid?

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Continuing with a trend to penalize parents who interfere with visitation, the Appellate Division, Second Department in Adams v. Perryman, modified a joint custody agreement and granted a father sole custody of their children because the mother thwarted the father's efforts to have meaningful visitation.

While the Court's decision does not detail exactly what the mother did, the decision evidences that there is a growing judicial intolerance of one parent interfering with the other parent's visitation rights.

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The Wall Street Journal ran an article today in which a couple, in the absence of lawyers, easily divided their assets on the way to an easy and amicable divorce. This scenario, I am afraid, has limited applicability.

The article details the divorce of Tim and Edra Blixseth, who were married for twenty five years and, together, amassed a fortune worth two billion dollars. Apparently, the couple was able to sit together, share a bottle of fine wine, and divide their wealth in a relatively short time. 

For most couples, a divorce is far more complicated than deciding who gets the 420 acre estate and who gets control of the fleet of corporate jets.  For most, a division of the assets is simply not that easy. Assets, like homes and automobiles, are generally encumbered by debt.   The parties are generally so leveraged that assets must be liquidated in order to distribute the equity. 

Since the Blixseths had adult children, they did not have to address the issues of child custody or visitation. Often, these issues are more emotional and demanding than the economic issues.

Absent greed, there was no reason why the Blixseths could not easily settle their case. The multi-billion dollar marital estate left both parties with more than adequate wealth to support their luxurious lifestyle or to replace any asset given up as part of the divorce settlement

Often, it is the less affluent divorce that requires good lawyering to settle. In a case, where there are insufficient assets and income to support both parties in the marital lifestyle, a couple of hundred dollars a month in child support or spousal maintenance payments makes a big difference.  I am certain that part of what made the Blixseths’ divorce so easy is that they did not have to worry if they would have enough cash flow to make their monthly mortgage payments. 

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Forbes ran an insightful article which surveys the  various means each state uses of distribute property in the event of divorce. 

As the article points out, New York is an equitable distribution state, the means all marital property is equitably distributed at the time of divorce.  Equitable does not mean equal.  The distribution is based on  a litany of factors codified in Domestic Relations Law 236(B).  which include the length of the marriage, the age and health of the parties, and their respective incomes,

Only the property that is acquired during the marriage is distributed.  Property owned before the marriage, acquired by gift from a third person, inherited or received as compensation for personal injury is generally considered separate  property and not subject to equitable distribution. 

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The New York  State Bar Association listed no-fault divorce as one of its key legislative priorities for 2007.

As I previously detailed, New York is the only state that does not have a no-fault grounds for divorce.   The absence of a true no fault divorce has often resulted in costly legal proceedings and bitter custody fights even in cases where both spouses want a divorce.

The Bar Association is advocating a grounds of divorced based upon the  "irretrievable breakdown" of the marriage.  According to Bar Association President Mark Alcott, this would address problems associated with finding fault in a divorce. This leads to increased litigation costs and worsens confrontations between the spouses, according to the association.

New Jersey recently approved an irretrievable breakdown of six months as a basis for  divorce.

Also on the domestic relations front, the State Bar  wants the Legislature to provide either a domestic partner registry, civil union law, or an amendment to the definition of marriage to give same-sex couples the same legal rights as married heterosexuals.

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I came across this article in NWI Times which confirmed, that which I already knew;   domestic violence and custody disputes increase during the holidays.  Though the article involves police in the Midwest, the message is universal.

Police officers who have to work on Christmas are faced with a double whammy.

Not only do they have to be away from their own families, they inevitably wind up spending time with someone else's.

Lansing Police Chief Dan McDevitt said veteran officers know what to expect when working the holidays -- a spike in domestic calls ranging from violent fights between family members to child custody disputes.

"If they've been around awhile, they know it's a full moon syndrome," he said. "It's going to get crazy."

McDevitt has taught at colleges, universities and police academies in the United States, Europe and the Middle East for both civilian and military law enforcement personnel.

He teaches his students that domestic calls are the worst they'll encounter.

"There's no more dangerous call for a cop," McDevitt said. "They're completely unpredictable. No matter how badly the parties involved have been battling, when you show up, you're the bad guy and they turn on you."

While working one Christmas, McDevitt was called to a homicide in Robbins involving a man who killed his cousin in a fight over a pork chop.

"We arrested the guy and were going to drop him off at the lock up and as I was getting him out of the squad, I said, 'So, was it good?'

"He said, 'What?' I said, 'The pork chop, was it good?' and he goes, 'It was delicious.' It drove me nuts."

Sgt. Keith Hughes of the Portage Police Department was working as a supervisor last Christmas and took some time to go home to watch his children open their gifts.

"I no sooner get there and we get a call of a physical disturbance with a knife involving a father and two sons and one attacked another one with a frying pan," Hughes said.

Sgt. Tim Emmons of the Porter County Sheriff's Department said domestic problems around the holidays are all but inevitable.

"You've got people thrown into family situations that aren't always family-oriented," Emmons said. "People often drink during the holidays or take drugs to try to deal with the stress and that makes things more volatile. People also do it to excess who aren't used to it, and that creates problems, too."

Police calls regarding child custody issues also tend to rise during the holidays, McDevitt said, and are some of the calls that upset him the most.

"It's terrible," McDevitt said. "Don't these people have any idea what this is doing to these kids?"

McDevitt and Emmons both said families often are advised by their attorneys to transfer custody at a neutral location and choose the Police Station, meaning children often spend part of their Christmas there.

Emmons said the custody situations sometimes escalate when police tell them they can't get involved.

"Sometimes the best we can do is take a report and turn it over to the courts," Emmons said. "We often aren't the custody police. If Dad's two hours late returning the kids, Mom thinks we'll make an arrest and, oftentimes, that's just not the case."

As tough as working the holidays can be, McDevitt said he has a simple coping mechanism he stresses to his officers and students when handling domestic calls:

"Treat people like you'd like to have your family treated."

"I also tell them to treat people with some compassion," McDevitt said. "You probably have a nice family to come home to at the end of your shift, which is more than these people have, so try to be compassionate."

If your ex-spouse is supposed to have visitation with the children over Christmas, allow him/her  to see the children. The children are not pawns to be used to seek revenge for past wrongs or slights.. 

The holidays should not be marred by custody disputes and  9-1-1 calls.

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The Family Law Prof Blog  picked up on a great piece that appeared in the New York Times. The piece is simply a series of questions couples should ask or wish they had asked before marrying.

These questions are thought provoking and go to the core of the marital relationship. As a father/husband, I see the questions raised coming into play. As a matrimonial lawyer, I see the sad result when the couples’ answers are in conflict.  Quite frankly, if answering the questions was a prerequisite to marriage,  many matrimonial attorneys would be in a different line of work. 

1) Have we discussed whether or not to have children, and if the answer is yes, who is going to be the primary care giver?

2) Do we have a clear idea of each other’s financial obligations and goals, and do our ideas about spending and saving mesh?

3) Have we discussed our expectations for how the household will be maintained, and are we in agreement on who will manage the chores?

4) Have we fully disclosed our health histories, both physical and mental?

5) Is my partner affectionate to the degree that I expect?

6) Can we comfortably and openly discuss our sexual needs, preferences and fears?

7) Will there be a television in the bedroom?

8) Do we truly listen to each other and fairly consider one another’s ideas and complaints?

9) Have we reached a clear understanding of each other’s spiritual beliefs and needs, and have we discussed when and how our children will be exposed to religious/moral education?

10) Do we like and respect each other’s friends?

11) Do we value and respect each other’s parents, and is either of us concerned about whether the parents will interfere with the relationship?

12) What does my family do that annoys you?

13) Are there some things that you and I are NOT prepared to give up in the marriage?

14) If one of us were to be offered a career opportunity in a location far from the other’s family, are we prepared to move?

15) Do each of us feel fully confident in the other’s commitment to the marriage and believe that the bond can survive whatever challenges we may face?

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Motions for modifications of child support are generally effective retroactive to the date the application is made. While the application to modify a support payment is pending, the non-custodial parent is urged to abide by the existing support order.

If an upward modification is granted retroactively, the parent paying support is ordered to pay the arrears that accrued from the date of the application to the date of the order.

But what happens if the parent paying support is current in making support payments under an existing order and is granted a downward modification? There would have been an over-payment of support. Could the parent paying support further reduce the child support payment to recoup the overpayment? The Appellate Division, First Department answered that question with a unanimous “No.”

In the case Coull v. Rottman, the Court said that it would violate public policy to allow the parent paying support to take a credit against future child support payments in order to re-coup the over-payments. Instead, the Court ruled that the parent paying support is only entitled to re-coup the over-payment of the child support payments against his/her share of the statutory add-on expenses – the portion of child support intended to cover child care and a child’s educational and special needs. 

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I am overwhelmed by the popularity of this blog.   I want to provide you- the readers and subscribers with information that will be insightful and helpful.   Please feel free to write me if there are any topics or news items that you wish me to address in the area of family law and divorce in New York.

Moreover, I welcome your comments so that we can have an on-going dialog.

Season greetings.

Daniel  Clement
 

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A court ruled that it was “a no-brainer” to deny a mother’s visitation request to force her children to spend the summer with her in Florida since she abandoned her family and took up residence with a convicted felon. The Court said visitation would not be in the best interests of children.

In LG v. JG, the mother sought to compel her children to travel to Florida to visit her in the home she shares with her boyfriend, a convicted felon. The court shared the father’s concern that the new boyfriend was “a general undesirable,” who should not be in contact with young children. 

Moreover, the Court found that the children were quite bitter towards their mother since she, without explanation, abandoned them.

Justice Pastoressa ruled that “it is the best interests of the children which controls, not the personal preferences, convenience of one parent vis-à-vis the other.” Since there would be no way of preventing the boyfriend from being in contact with the children if they were compelled to visit the mother in Florida, the Court ruled that it was clearly in the children’s best interests to deny visitation with the mother in Florida.  

The Court noted that the father was open to the mother seeing the children in New York.

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In two recently decided cases, custodial parents were penalized for interfering with visitation and attempting to alienate children from the non custodial parents. In one of the two cases, a mother lost custody of her child; in the other case, the mother was found in contempt and risked further consequences if the conduct continues.

In Chase v, Chase,  a mother’s continued false accusations that the father was a pedophile, compelled the Appellate Division reverse a Family Court finding that granted custody to the mother. 

The Appeals Court’s finding that the mother failed to produce the child for visitation, made repeated false and unsubstantiated claims that the father sexually abused the child, and repeatedly disobeyed various court orders warranted a change of custody. As a consequence of the mother’s conduct, the Court granted the father custody of the child.

In another case recently decided by the Suffolk County Family Court (Frank G. v. Carol G.), a mother was found to be in contempt of court for her failure to abide by the visitation provisions incorporated in a judgment of divorce. 

In both cases, the courts were particularly upset by the fact that the mothers, by their own admission, acted as the sole arbiters of what was the best course of conduct for their children.  Both mothers knowingly and intentionally disregarded court orders providing for the fathers’ visitation. 

Both courts reiterated the axiom that interference with the relationship between a child and the non-custodial parent by the custodial parent has said to be an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent.

While the holdings of these two cases evidence a judicial hostility to the custodial parent’s attempts to alienate a child from the non-custodial parent, the facts unfortunately show that the non-custodial parent has a long and difficult course to enforce their visitation rights.  

Since requests for a change in custody  are, quite properly, closely scrutinized, a custodial parent accused of interfering with the non custodial parent’s visitation is frequently given gentle slaps on his/her wrists before facing the consequence of being held in contempt or losing custody.

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Dissolution of a marriage by divorce or annulment is one of the two events triggering marital assets to be distributed; death is the other event. However, if one spouse caused the death of the other, he/she will be prohibited from taking a distribution from his/her spouse’s estate.

The Nassau County Surrogate’s Court in the case of Estate of Adeline Joseph Alexis, 2006 NY Slip Op 26452, restated the well established rule that “One who takes the life of another should not be able to profit from his wrong and shall be barred from inheriting from the person slain.” 

In this case, the husband was convicted of murdering his spouse and was, therefore, disqualified from inheriting as a distributee from his wife’s estate.

The Court noted that not only does a murderer not inherit from the victim’s estate, but he/she may be prohibited from collecting any insurance or other death benefits. The underlying principle is that no one should profit from their crime.

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If you are concerned about the growing incidents of identity theft, I recommend the following post from Trent Wilcox of the Arizona Divorce & Family Law blog:

It’s beginning to look a lot like . . . well, like the winter holidays, with all the gift-giving and –receiving opportunities that abound. Gift lists grow ever-longer and more specific, and the giver’s thoughts turn to long hours and longer lines at the mall, fighting for this year’s version of the last Furby or Cabbage Patch Doll on the shelf. Wouldn’t it be easier to log onto the Web and shop in your jammies, humming along with your Christmas tapes? But what about identity theft? Could you unwittingly be handing over your life to some scammer?

It is possible—but not as likely as the hype may lead you to believe. In the report prepared for the Federal Trade Commission in 2003 by Synovate, approximately 4.6 percent of the population experienced some form of identity theft in 2002. In the same report, it was determined that in twenty-five percent of all identity thefts reported, the thief obtained the information through theft of a purse or wallet.

So your chances of experiencing any form of identity theft are one chance in twenty. And if you are one of the unlucky ones, you have a one in four chance of having been taken when someone lifted your wallet or purse.

How else does your information get captured? Do you shred your credit card statements, or do you just toss them in the garbage? If you leave them whole, that gives a thief your name, address, and account number. If you put them in a desk drawer, someone could remove them from that drawer. And do you know where the waiter goes with your credit card when he goes to swipe it? Are you sure he’s not making notes on a post-it, just in case he feels your tip is too small? There’s more to identity theft than the Internet.

What do you do when you realize that something’s gone wrong? For most people, the main concern is with misuse of an existing credit card account. With good reason too—according to Synovate’s 2003 report, misuse of an existing card accounts for over half the incidents of reported identity theft.

First and foremost, report the loss or theft of a credit card to the issuer immediately. This can limit your liability dramatically, often to a cap of $50.00 per card. Close any accounts you know were tampered with and open new accounts with new passwords. Don’t choose something obvious like a string of consecutive numbers, your mother’s maiden name, parts of your Social Security Number, or names of children or pets. Then file complaints with your local police and with the Federal Trade Commission. Finally, place a fraud alert on your credit report.

Speaking of credit reports, they are one of the best tools for making sure accounts are not being opened in your name without your knowledge. You are entitled to one free credit report every twelve months—just for asking. Peace of mind makes a nice holiday gift to yourself.

I recall recently reading that identity theft is not uncommon between divorced spouses. Your ex-spouse does not need to sift through the garbage to obtain the personal information necessary to steal your identity.   The knowledge was obtained during the marriage and then handed to them as part of financial disclosure during the divorce.

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In September, I commented on a series of disturbing articles in the New York Times about the lack of justice being dispensed in New York's village and town courts. 

Bloglines reports the reform is coming.

"New York judicial officials have a plan to begin reforming the state’s 300-year-old system of town and village courts, which have been criticized as outmoded, poorly supervised, and unfair, the New York Times reports. The plan, announced by state chief judge Judith S. Kaye, included changes that have been recommended for years by defense lawyers and legal experts. They include an increase in training for justices, improving their supervision, and monitoring whether they are protecting basic legal principles like the constitutional right to a lawyer."

"The courts — known as justice courts — will be required for the first time to keep a word-for-word record of their proceedings, like other courts in the state. As outlined in Times articles in September, the courts have survived in part because the justices — most not even lawyers — have longstanding and deep ties to the upstate political system, and because of the substantial cost of replacing them with more professional courts. The State Assembly will begin a broad examination of the justice court system next month."

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A biological mother, who relinquished her paternal rights to her infant child, was granted the right to have visitation with the child.   As part of the surrender, the mother expressly reserved her right to see the child four times a year and to exchange cards and letters with the child.

The Suffolk County Family Court in the case of Mary M.O. v. Doe opined it was within the court’s purview to scrutinize whether it would be in the best interests of the child to allow the biological mother to have continued contact with the child. 

 The Court noted that the biological mother expressly conditioned the surrender on having continued contact with the child and that she maintained a relationship with the child for as long as she could until her efforts were frustrated by the department of social services and the adoptive mother.     

The Court found that the child was aware that the petitioner was her biological mother and that a cessation of visitation could result in long term feelings of distress and abandonment.  On the other hand, the Court found that continued visitation would convey a positive message to the child that the biological mother really cared.  

Significantly, there was no showing that the biological mother was in any way unfit or had acted inappropriately towards the child. 

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The Rosen Law Blog  reminds us that there are penalties for the failure to pay child support.. The most obvious penalty is that the “dead-beat” parent can be incarcerated and held in contempt of court.

In addition, in New York, the failure of a parent to pay court ordered child support can result in the suspension of driver’s, professional, business and/or recreational licenses. According to the National Conference of State Legislatures, every state has some version of a law that revokes licenses of parents who fail to pay child support 

Originally, I thought it an oddity that the penalty for the non payment of support was the revocation of the very professional license needed by the payor to generate income. Without the license, there could be no income. Without income, there could be no money available to pay support.

On the other hand, if the parent is not paying support, the children, the beneficiaries of the intended support, are not being hurt by the lost income occasioned by the license suspension. In the end, it may be a good lesson to the non paying parent to get a taste of what it is like not to have money for food, clothing and shelter.    

In any event, I have seen firsthand that the loss of a license works. Inevitably, after a parent’s driving privileges have been revoked (because he/she is in arrears and claims that he/she cannot afford to pay child support), he/she miraculously manages to find just enough money to satisfy the support arrears.

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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 to a basically talentless slacker who was a drain on her finances.

And in the end, money is probably what Spears’ divorce is all about. Since she deliberately showed off a new trim body on David Letterman’s show the other night, Spears is obviously getting ready to go back to work. If a new album and tour are on the boards, Spears obviously doesn't want to share the proceeds with Federline. It was clearly better to get out now, so that K-Fed can lay claim to only half of Spears’ earnings during what has been the most fallow period in her career.

Since celebrity cases oft provide good facts to illustrate how the legal system works, I thought I would offer my two cents.   It is not uncommon for the provisions of a pre-nuptial agreement to make payments (either the amount of money or the duration of payments or both) conditioned on the length of the marriage. 

In Britney's case, divorce became a consideration as a triggering or measurement date in the pre-nup approached.  Britney elected to cut her economic losses. 

Perhaps, her "poor" husband's motive  for contesting the divorce is economic,  too.   If he is successful, then  he may be entitled to whatever rights he would have acquired on the third anniversary of marriage. 

Look for a settlement, soon.

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A wife, who was awarded all the marital assets in a divorce, lost her bid to take immediate possession of the assets because her husband filed for bankruptcy.   

The Second Circuit Court of Appeals in the case Musso v. Ostashko, ruled that even though the divorce trial court awarded the wife all of the marital assets, because the judgment of divorce was not entered until after the husband filed for bankruptcy, the assets were the property of the husband’s bankrupt estate. The wife would become an unsecured creditor of the husband’s bankrupt estate.

On October 23, 2003, the  trial court in the parties' divorce  granted the wife equitable distribution and awarded her all of the parties’ property.  In December, the husband filed for bankruptcy. Sometime later, the judgment of divorce was docketed.

The Court found that it was the judgment of divorce which gave the wife the right to take possession of the marital property, not the decision after trial. Since  the judgment was not entered until after husband’s bankruptcy filing, the wife did not have an immediate right to the husband’s property. Therefore, the Wife’s claims would have to be resolved in the bankruptcy proceeding.

The Court signaled that the wife may have suffered only a temporary set-back.  It properly recognized that the husband abused the bankruptcy process and pointed out the t Bankruptcy Court, on remand, had the power to address any inequities resulting from this decision  “to see to it  that no injustice or unfairness is done. . ..”

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In their New Jersey Law  Blog, Stark and Stark report that  New Jersey took a step toward revamping its grounds for divorce for the first time in 35 years when on October 23 the Assembly Judiciary Committee approved adding "irreconcilable differences" as a cause of action for divorce. 

If passed, bill A-483 would mean that if a person can prove that irreconcilable differences have caused the breakdown of the marriage for six months and which make it appear that the marriage should be dissolved and there is no reasonable prospect of reconciliation, a divorce should be entered.

Under current New Jersey law, the only "no fault" ground for divorce requires 18 months separation in different households with no reasonable prospect of reconciliation.  Although similar bills have been introduced during the past, this is the first time "irreconcilable differences" has enjoyed wide legislative support. It should be noted, however, that opponents of the bill are contending that the 6 month period is too short for couples to work through their problems. Nonetheless, the sponsors of A-483 are optimistic of the bill's eventual passage.

One can only wonder when will New York finally embrace a no fault grounds for divorce. Under present New York law, the only alternative to alleging and proving marital fault is living separate and apartment pursuant to a written agreement for a year.  All of the other states have adopted an “irreconcilable differences” grounds for divorce.   It is high time for New York do likewise.

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The very week that the New Jersey Supreme Court forced the state legislature to address the issue of same sex marriage, a New York court rendered a decision which highlights the differences in the law when same sex and heterosexual couples split-up. 

Indeed, “divorcing” same-sex couples are not entitled to equitable distribution. Instead, those couples terminating a relationship that was not recognized as a legal marriage (which also includes heterosexual, but unwed couples), need to explore alternate theories for dividing their jointly acquired assets.

The case of Cytron v. Malinowitz, involved the break-up of a thirteen year domestic partnership. During this long term relationship, the parties acquired a home and accrued valuable retirement accounts, to which both parties were making claims of entitlement.     Unquestionably, had the parties been a legally wedded couple, all of the property acquired during the marriage would have been subject to equitable distribution. 

Since the domestic partners are not married, the Court, by necessity could not equitably distribute the assets acquired during the relationship.    Instead, the Court applied partnership law to distribute the proceeds of the home the domestic partners owned as joint tenants. Each of the litigants was entitled to the return of their respective contribution to the home purchase. The remaining equity was split equally between the parties.

Citing the recent Court of Appeals case of Hernandez v. Robles, which denied same sex couples the rights of heterosexual married couples, the court declined to “distribute” the portions of the retirement account accumulated during the relationship. 

Since the retirement account could not be subject to equitable distribution, one party sought to impose a constructive trust on the asset. In short, a constructive trust is a devise imposed by a court “whenever necessary to satisfy the demand of justice. . . A constructive trust may be imposed in favor of one who transfers property in reliance of a promise originating in a confidential relationship, where the transfer results in the unjust enrichment of the other.” 

In Cytron, though the trial court found there was a relationship of trust between the parties, it failed to find that there was any representation to share in the pension assets.   Therefore, in the absence of an agreement, the pension assets were not distributable. Had this been a legally married couple, the pension assets would, as a matter of law, be a marital asset and would be subject to the claims of the non-titled spouse. 

As a footnote to the issue of same sex marriage, any expansion of the right to wed would, by necessity, have a corresponding effect on divorce and distribution of “marital property.”  

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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 corporation in which the husband possessed a minority interest and was the chief executive officer. 

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There has been much ado in the tabloids this week about the allegations of domestic violence by Paul McCartney against Heather Mills. So I wondered, what relevance would these allegations have if this case was being heard in New York?

 In New York, because only the parties, their respective attorneys and the court have access to the papers filed in court, the press would not have access to court papers.   So, unless one of the parties leaked court papers, there would be no trial in the press.

If there was domestic violence during the marriage, Ms. McCartney could have sought intervention of the courts during the marriage and requested an order of protection against her husband.  

The fact of domestic violence would give Ms. McCartney grounds for a divorce. As I noted in previous postings, New York is not a “no-fault divorce” state. That means, a person seeking a divorce needs to allege and then prove one of the statutory grounds for divorce. The allegations of domestic violence, which if established at trial, could serve as the basis for a divorce upon the grounds of cruel and inhuman treatment.

As I also, discussed in an earlier posting, generally marital fault will not be a factor in equitable distribution, the method of dividing assets in New York.    Marital fault will only be taken in consideration where it is  “so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship.”

 A party’s acts of domestic violence would certainly be a relevant consideration in a contested custody case. In custody cases, the courts will be guided by what it perceives to be the best interests of the children. Certainly it would not be in a child’s best interest to be with a violent parent.

I do not have enough information as to form an opinion as the merits of the allegations. But, given the fortunes involved and the tabloids’ fascination with celebrity divorce, I am sure that, we will be hearing a lot more about this case in the near future.

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 Jeffrey Lalloway points out in his California Divorce and Family Law Blog, an overwhelming 80% of divorce attorneys cited an increase in prenuptial agreements during the past five years in a recent poll of American Academy of Matrimonial Lawyer (AAML) members. In addition, 65% of those surveyed answered that prenuptial agreements are most often sought by men and women in the age range of 40-60 years old, revealing that people in the Baby Boomer generation are currently the most likely to request the contracts.

"It can be a sensitive subject, but in the same way you would discuss your future goals and dreams with a partner, prenuptial agreements can often represent the best way to ensure the needs of both parties are considered in the event of divorce," said Cheryl Lynn Hepfer, president of the AAML. "A married couple hopes never to have to enforce the terms of a prenup, but they also realize divorce proceedings could be much more unpleasant without such an agreement in place."

In a survey question that asked about the strangest items included in prenuptial agreements, 31% of the attorneys noted provisions being made for a family pet, while some of the lawyers shared even more offbeat areas that have been addressed. These unique agreements have included adultery penalties, terms for frequency of intimacy, limitations on weight gain, and schedules for housekeeping.

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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 a deed to be recorded. Dom Rel. L. §236(B)(3)(emphasis added).

  The failure to properly acknowledge an agreement will invalidate it, rendering it unenforceable.

  In a recently reported case, the parties signed a handwritten post-nuptial agreement, which provided that a cooperative apartment would be purchased by Wife for $750,000 and would remain her separate property. She, alone, would be solely entitled to all of its income and profits.   The parties signed the one page agreement before a notary. The agreement was, however, not acknowledged. 

 Years later, when the parties divorced, the property was valued at $2,300,000. The husband contended that since the agreement was not executed as required by statute, the agreement was not valid. The Court agreed.    

  In an earlier case, the Court of Appeals,   Matisoff v. Dobi. 90 N.Y.2d 127, 659 N.Y.S.2d 209 (1997) explained why the law requiring the agreements to be acknowledged is absolute. 

Primarily, a bright-line rule requiring an acknowledgment in every case is easy to apply and places couples and their legal advisers on clear notice of the prerequisites to a valid nuptial agreement. Consequently, spouses or prospective spouses will not need to speculate as to whether the enforceability of their agreements will be supported by their original motivation or subsequent economic relationship during the marriage. Certainly, consistent and predictable enforcement is desirable with regard to such important marital agreements. . .

Acknowledgment, moreover, serves a valid purpose apart from prevention of fraud. Marital agreements within section 236(B)(3) encompass important personal rights and family interests. As we explained with regard to the similar prerequisites for proper execution of a deed of land:

 "When [the grantor] came to part with his freehold, to transfer his inheritance, the law bade him deliberate. It put in his path formalities to check haste and foster reflection and care. It required him not only to sign, but to seal, and then to acknowledge or procure an attestation, and finally to deliver. Every step of the way he is warned by the requirements of the law not to act hastily, or part with his freehold without deliberation"

(Chamberlain v Spargur, 86 NY [603] at 607, supra).

Here, too, the formality of acknowledgment underscores the weighty personal choices to relinquish significant property or inheritance rights, or to resolve important issues concerning child custody, education and care.

Certainly, had the Wife in the recent case sought the aid of counsel in preparing the marital agreement, the agreement would have been properly acknowledged. The valid agreement would have rendered the wife immune to the husband’s claim of entitlement to her property.   The wife’s two million dollar asset would have been fully protected. I would have to guess that the value of the asset to be protected dwarfed the attorney’s fee “saved” by the wife. 

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Imagine, you have been kicked and choked by your spouse, your life has been threatened, you summon the strength and courage to seek intervention, you call the police and, when you finally go to court to press charges, you hear a judge say "Every woman needs a good pounding now and then." 

According to a special report in the New York Times, this actually happened in an upstate New York village court. Alarmingly, according to the report, this type of ignorant justice is not an isolated incident.  It may be typical of the local courts statewide. 

In alarming detail, William Glaberson details how "local justice" is dispensed by unqualified and untrained judges, some barely possessing a high school education.  The article points out that New York demands more training for its manicurists and hair stylists than for the local judges. The judges are not screened for competence, temperament, or even reading ability.  (In the second part of the series,  one judge's reading comprehension is questioned.)  Worse, yet, there is little, if any, oversight of the local judiciary.

In areas outside of New York City, these local courts may be the court of first instance in domestic violence cases. The defendant may be arraigned in these courts and a temporary order of protection issued. While some allegations of domestic violence may be suspect, many others are well founded. Domestic violence matters require particular sensitivity. Unquestionably, a victim of domestic violence and abuse must be protected. On the other hand, safeguards must be in place to protect the falsely accused.

Unfortunately, the article demonstrates, often a judge's ignorance, bias and prejudice becomes the rule of law:

In 20 years in office in Haverstraw, north of New York City in Rockland County, Justice Ralph T. Romano drew attention for his opinions on women, state files show. Arraigning a man in 1997 on charges that he had hit his wife in the face with a telephone, he laughed and asked, “What was wrong with this?” Arraigning a woman on charges that she had sexually abused a 12-year-old boy, the justice asked his courtroom, “Where were girls like this when I was 12?”

Across the Hudson, Joseph Cerbone, the Mount Kisco justice with the miniature violin, persuaded a young woman to drop her abuse case against the son of a couple he had done legal work for. She told the commission that while she did not believe the justice’s claim that the son was “a decent guy” who had “made a mistake,” she had no choice.

“I kind of felt I had no one behind me, no support,” she said. “And by getting a phone call from a judge, I felt that maybe I was making a mistake by going through with these charges.”

Quite simply, this article is a wake up call and a reminder that we have not evolved as far as we think we have.

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Often times I receive a telephone call from a prospective client who states, “I don’t want a divorce. I want an annulment.” When I inquire as to why, I am typically greeted with silence because the distinction is not really understood. 

        An annulment invalidates a marriage that the parties were not legally capable of entering. In New York there are several scenarios where a marriage can be annulled. Specifically, a marriage can be annulled:

• If either spouse is incurably incapable of having sexual intercourse; 
• If in a marriage between persons under the age of 18 years, the spouse under 18 wants an annulment;
•  If, after marriage, either partner becomes incurably insane for five years or more; (The sane spouse may be required to support the insane spouse for life.)
• If either spouse consents to marry as a result of the force or duress of the other spouse; or if either spouse cannot understand the nature, effect and consequences of marriage; or
• If a spouse’s consent to enter the marriage was obtained by fraud. The fraud must have been such that it would have deceived an ordinarily prudent person and was material to obtaining the other party's consent. The fraud must be such as to go to the essence of the marriage contract. 

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Last week, Justice Jacqueline Silbermann sent a strong message to abusive spouses; domestic violence will be considered in the distribution of marital assets.

In DeSilva v. DeSilva, she ruled that a wife was entitled to all of the couple's marital property because her husband had verbally and physically abused her. This decision went even further than her earlier decision in Havell v. Islam, in which she awarded ninety-five percent of a couple's marital property to the wife because the husband had brutally attacked her with a barbell, nearly killing her and leaving her with permanent injuries. 

In Havell, the Court stated that because the husband's behavior "shocks the conscience," it was appropriate to deviate from the property division that might otherwise be appropriate under the circumstances of the case.

The husband in Havell, after violently beating his wife with a barbell, told their children not to worry about helping their mother because she was already dead.  The Appellate Division upheld Justice Silbermann’s ruling by concluding that the husband’s marital misconduct could be taken into account when dividing property as long as it was "so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship.”

Fortunately, the husband’s conduct in De Silva was not as violent as the physical assault in Havell, but, it was, in the Court’s view, as egregious, thereby justifying an award to the wife of all of the parties’ assets.  

In De Silva, Mrs. De Silva alleged that Mr. De Silva had engaged in a long history of abuse towards her, which, increased over time in both frequency and intensity. Mrs. De Silva alleged that her husband spat in her face; while she was pregnant with their second child, threw a packed duffel bag at her stomach; and engaged in verbal tirades in front of their children and other witnesses. Mrs. DeSilva testified that she feared for her safety and the safety of her children, and suffered extreme mental anguish because of her husband's conduct.

From these decisions, it is certain that abusive behavior, be it a single violent incident or a prolonged course of conduct, will be a factor in equitable distribution.   What remains to be determined is how a party’s violent, abusive or egregious conduct will interplay with the other statutory factors of DRL §236(b)(5)(d) (i.e., the parties’ respective age, health, the duration of the marriage, etc.) which are required to be considered by a court rendering judgment on equitable distribution.  

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Earlier this month Ben Steven’s on his South Carolina Family Law Blog, published a comprehensive list of the forty-one state specific blogs addressing family law  and matrimonial issues. 

Since this blog will focus primarily on issues involving New York  family and divorce law, the listed blogs can be an invaluable asset when issues involving other states arise.  

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In a divorce, different types of assets are valued at different times.   For instance, passively held assets, like pensions, are generally valued as of the date of trial. Assets actively managed by one of the parties are generally valued as of the date of commencement of the action for divorce. In part, this prevents a litigant from sabotaging an asset solely to avoid equitable distribution.  

In a decision last week, the Appellate Division, First Department ruled that an asset purchased for speculative purposes, is not to be valued “if, as and when” the asset is eventually sold at some time in the future, but at date consistent with Domestic Relations Law § 236(B)(4)(b), which requires the court to set a valuation date somewhere between the date of commencement of the action and the date of trial,

In Pickard v. Pickard, the parties had a 25% interest in KP Holdings, a New York limited liability company which at the time of the action owned 11 occupied rent-controlled or rent-stabilized apartments in three buildings on the East Side of Manhattan. These apartments would become far more valuable after they were vacated by their present tenants and became free of the rent regulations.

The trial court rejected defendant's expert's valuation of defendant's 25% interest in KP Holdings at $55,000, since defendant’s expert acknowledged that the apartments could easily be worth six to seven million dollars when the rent controlled apartments became unregulated and more salable.

Rather than valuing the asset at a future date when the assets would be eventually sold, the Appellate Division opined that the asset was to be valued for equitable distribution purposes at a present, not a future date. In reaching this conclusion, the Court stated that:

The present value of this asset is no more speculative than that of any other asset with limited marketability; it may be properly determined by standard valuation techniques. Rather than rendering the asset's value too speculative to determine, the marketability limitation simply creates the need to apply discounting factors to the future value - exactly the procedure the expert here employed. He properly considered not only the projected sale prices some distance in the future, but then applied discounts to those projected prices to account for such factors as the likely length of time before the apartments will become available for sale, and the expected costs of ownership of the properties in the intervening years.

Another reason to presently value the assets, according to the Court, was that it would fully resolve the issues between the parties. If the proceeds of the parties’ assets were to be distributed between the parties as the apartments are sold sometime in the future, there could be too many possible disputes between the parties, requiring court intervention “such as the extent to which defendant may claim reimbursement for capital contributions to maintain the apartments until they are sold. Distribution of assets should not be left unresolved at the time of the divorce where it can be effectuated at that time, as can the parties' interest in KP Holdings.”

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You have been served with a summons in connection with a divorce action -what do you do?

 You must immediately decide whether you will be contesting the divorce. In doing so, you will have to determine whether the marriage is dead, whether the marriage is salvageable and to attempt reconciliation or whether you will need to contest the divorce for other reasons. 

Reconciliation requires cooperation. If you spouse does not want to reconcile, there may be nothing you can do to salvage the marriage. You can contest the divorce, but even if you prevail and the divorce is denied, you cannot force your spouse to live with you or to revive the marital relationship. You will be married in name and legal effect only.

You should be acutely aware that by the time you have been served with the divorce papers, your spouse has, in all likelihood, consulted with an attorney, paid a retainer, and filed a summons seeking a divorce in court. You may surmise that this person does not really want to be with you.  

By contesting a divorce, you force your spouse to prove, at trial, each and every element of their grounds for divorce. That is they must prove all of the jurisdictional requirements (the reason the court has the authority to hear the case and render a judgment) and all of the elements for grounds for divorce (i.e., adultery, cruel and inhuman treatment, abandonment for a year or an imprisonment). So, for instance, if the divorce is based upon the grounds of abandonment, you spouse must prove that for a year before he/she commenced the divorce, without excuse or justification, you continuously abandoned him/her.  

If you agree that the marriage is over, but there are other unresolved issues relating to the children of the marriage, visitation, child support, equitable distribution of property, spousal maintenance or any other issue, you should contest the divorce.  The court can bifurcate the trial. In other words, the court can separate the issues that the parties agree on, say, for instance, to divorce, but address only the issues in dispute, generally the economic issues or the issues related to the care and custody of the children.   No divorce will be granted until all the issues have been resolved by trial or agreement.  

Suppose, however, that you agree the marriage is over, but not for the reasons alleged by your spouse. For example, the husband alleges he was abandoned by the wife. In reality, the husband not only abandoned the Wife, but moved in with another woman, whose child he fathered. The Wife, in this example, could counterclaim that the Husband abandoned the Wife and also committed adultery. At trial, each party would have the opportunity to prove his or her case in order to obtain a divorce. If either party sustains his/her burden of proof, a divorce will be granted. Conversely, if neither proves his/her case, both will be denied a divorce.

In making the decision whether to contest the divorce, the party should carefully consider all of the issues to be resolved in connection the divorce, the available options, the likelihood of success on the merits, and the costs involved in defending the action. 

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Clients view retaining attorneys as a necessary evil. They know they should retain one, but they hate to pay fees. Most matrimonial and family law attorneys are retained on an hourly basis, meaning they bill at a set rate on a time basis. Waste or squander your attorney’s time, and you waste your money.

A client, looking to minimize his/her legal fees can do a number of things to minimize his legal fees:

1.        When retaining an attorney, be prepared to supply relevant financial documents, including bank and financial statements, tax returns, mortgage applications, loan documents and credit card bills.

2.        Do not fight over assets that are of limited value. As I have written before, it simply does not make sense to litigate and run up huge legal bills that will dwarf the value of the assets to be acquired. 

3.        Pick your battles and remember moral victories cost money. You may want to be proven right or vindicated on some issue, but if it does not advance your case, you may want to conserve your resources.

4.        Recognize that when you communicate with your attorney, the meter is running. If you call your attorney, situate yourself in a room where you will not be interrupted and can freely talk. Do not put take other telephone calls while speaking with your attorney.   Although you may are on another line, the attorney is on hold and the meter continues to run.  

5.        Do not force the attorney to practice defensively.   If the attorney feels he/she has to put everything in writing to you, or that every communication with you must be confirmed in writing, you are going to increase your legal fees.

6.         Be candid with your attorney. In litigation, lies or falsehoods are always discovered.

7.        Don’t litigate only to be vindictive. A strategy which is simply, “If I can’t have it, neither can you” results in only large legal fees.

 In the end, if you wish to minimize your legal expense, be prepared, professional, reasonable and candid; then hope that your spouse will reciprocate,

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It took only a week for the  reverberations to begin  from last week’s affirmance by the Court of Appeals of New York’s ban on same sex marriages. Last week, in the case Funderburke v. New York State Department of Civil Service, a Nassau County judge granted the State summary judgment, dismissing the case of a former employee, who sought health benefits for his same-sex partner.

Mr. Funderburke had been with his partner since 1965 and, in 2004, married him, in Canada, which recognizes same-sex marriages.  Fundeburke requested spousal benefits for  his partnet but the school district, which employed Funderburke, denied his request because it declined to recognize same sex marriages.  

In dismissing the case, the Judge stated:

In deciding this case, this Court is constrained to follow the recent holding of the Court of Appeals in Hernandez v. Robles  . . . While the Court of Appeals in that case did not directly address the issue of whether New York should recognize same sex marriages performed in foreign jurisdictions, the Court’s ruling is instructive on the definition of marriage. The Court of Appeals held that there are rational grounds for limiting the definition of marriage to opposite sex couples and that any expansion of the traditional definition of marriage should come from the New York State Legislature.

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In an aptly titled article Real Estate and Rubble: When Marriages Go Awry , the New York  Times  stated:

 “. . .[I]n New York, lawyers say, while blowing up a building is extreme, vindictiveness is not unusual. Divorce lawyers said they had seen pets killed and wives given theater tickets so their husbands could put their possessions on the street.”

“Some say such spiraling levels of anger, rage and eventually violence are a function of New York’s cumbersome divorce laws, which require one spouse to find fault with the other and thus encourage lawyers to keep the fight going as long as possible, spousal tensions rising all along.”

The Times continued: “If Las Vegas is the capital of instant divorce, New York City is the worldwide capital of unfathomably big awards and ferocious litigation. Think of Donald and Ivana Trump, Rudolph W. Giuliani and Donna Hanover, Jocelyne and Alec Wildenstein, Ronald O. Perelman and Patricia Duff”

The absence is of a true no-fault divorce is more than problematic. In the best cases, the absence of a no-fault divorce requires a party to perjure him/herself to state grounds to obtain a divorce.  In the worst cases, it gives license to the spouse against whom a divorce is sought to extort money and other concessions from spouse seeking the divorce. Opposition to the grounds for divorce is often withdrawn after the party seeking divorce gives in on some unrelated issue. 

In cases where a party is unable or unwilling make some concession, the parties must, as the Times correctly points out, litigate. As the litigation progresses and the accusations and vitriol increase, it is only natural that the parties become more desperate and more despondent. 

Dr. Bartha’s actions are inexcusable. But it is foreseeable that a person suffering from mental illness, thrust in a system that rewards conflict and confrontation, could, when faced with certain defeat, violently lash out with destructive force. Indeed, Dr. Bartha’s former lawyer portrays his client as being “ hounded by aggressive lawyers who stripped him of his dignity and everything he owned, taking his beloved house when he was too depressed to defend himself.”

Will adopting a no-fault divorce law end all destructive conduct in divorces? No. But a more liberal law will certainly ratchet down the acrimony that leads to these cruel and violent acts.

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In a frightening twist to a hotly disputed divorce in New York State, Dr. Nicholas Bartha, blew up his beloved town house on East 62^nd  Street.

 In prior, postings, I had written of litigants who, no pun intended, followed scorched earth tactics.   Obviously, no one can foresee a party’s irrational behavior or violent reaction to an adverse decision.   

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Both New York tabloids picked up this weekend on a widely reported case involving a broken engagement and the return of an engagement ring. (Finance Hits Rock Bottom and Fiance is “Gift” Rapped.)  For purposes of complete disclosure, I represented the husband-to-be

In this case, the husband-to-be sought to recover a large diamond engagement ring given to his ex-finance, who broke off the engagement. The woman was allowed to keep the valuable ring. 

An engagement ring is a gift made in contemplation of marriage.   That is, the gift is conditioned upon the marriage actually taking place.   If the marriage takes place, the condition is satisfied, and the woman is permitted to keep the ring.   Conversely, if the marriage does not occur, the would-be-bride must return the ring.  

So why was the woman, who broke off the engagement, allowed to retain the engagement ring? Because, there is an exception to the general rule: if a man is already married, he cannot legally contract to wed.  The condition for giving the ring cannot be satisfied. Therefore, the woman is entitled to retain the purported gift made in contemplation of marriage even if the parties never wed.

The recent case was interesting because the man actually had been granted a divorce in Massachusetts, one month before he gave his fiancee the engagement ring. However, unlike New York, where the parties are free to re-marry as soon as the judgment of divorce is entered, in Massachusetts, the divorce does not become absolute until the passage of some time.

Although the man had successfully done everything that had to be done in order to obtain a divorce, that the divorce had been granted and that that all that was required for the divorce to become absolute was the passage of time, the Court ruled that the man was impaired from remarrying. Therefore, he was not entitled to the return of his ring. 

The moral- Do not become engaged unless and until you are legally divorced

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 While there is not a lot of levity in divorce, perhaps this tale of a husband and wife involved in a bitter divorce for possession of the marital home could be instructive. The Husband may have won a battle ( or so he thought); he certainly lost the war.   The story, if not useful, is, at least,  humorous.

 She spent the first day packing her belongings into boxes, crates,
 and suitcases.
 
 On the second day, she had the movers come and collect her things.
 
On the third day, she sat down for the last time at their beautiful
 dining room table by candlelight, put on some soft background music, and
 feasted on a pound of shrimp, a jar of caviar, and a bottle of
 chardonnay.
 
 When she had finished, she went into each and every room and stuffed
 half-eaten shrimp shells dipped in caviar into the hollow of all of the
 curtain rods. She then cleaned up the kitchen and left.
 
 When the husband returned with his new girlfriend, all was bliss for
 the first few days. Then, slowly, the house began to smell. They
 tried everything: cleaning, mopping, and airing the place out. Vents
 were checked for dead rodents, carpets were steam cleaned, and air
 fresheners were hung everywhere!
 
 Exterminators were brought in to set off gas canisters, during which
 they had to move out for a few days, and in the end they even paid to
 replace the expensive wool carpeting. Nothing worked. People stopped
 coming over to visit. Repairmen refused to work in the house. The maid
 quit. Finally, they could not take the stench any longer and decided to
 move.
 
 A month later, even though they had cut their price in half, they
 could not find a buyer for their stinky house. Word got out, and,
 eventually, even the local realtors refused to return their calls.
 Finally, they had to borrow a huge sum of money from the bank to
 purchase a new place.
 
The ex-wife called the man and asked how things were going. He
 told her the saga of the rotting house. She listened politely and said
 hat she missed her old home terribly and would be willing to reduce
her divorce settlement in exchange for getting the house back. Knowing
 his ex-wife had no idea how bad the smell was, he agreed on a price that
 was about 1/10th of what the house had been worth, but only if she were
 to sign the papers that very day.
 
 She agreed, and, within the hour, his lawyers delivered the paperwork. A
 week later, the man and his girlfriend stood smiling as they watched the
 moving company pack everything to take to their new home, including the
 curtain rods.

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A review prompted by complaints of unfair handling of divorce cases has led to a shake-up of Westchester's matrimonial courts. All of the matrimonial judges in Westchester County have been replaced.   Though I have no knowledge of the merits of the charges, I am concerned that wholesale change is akin to “throwing the baby out with the bath water.”

Any charge of impropriety in the judiciary must be promptly investigated and openly addressed.   The judicial system must be protected in order to assure that all litigants are treated fairly.

The only problem is that by rotating all of the matrimonial judges in Westchester at once, there are no experienced matrimonial judges in the county. Like the attorneys who appear in the matrimonial parts, the judges have become specialized in family law practice. They gain insights and particular skill sets from experience. 

While judges, for various reasons, leave the matrimonial parts, I am concerned that while the new judges “get up to speed,” divorce practice may temporarily slow during this brief learning process. Litigants’ days of judgment could be delayed.  

That said, if faith in the impartiality of judiciary is restored, this minor “speed bump” will be a small price to pay.

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This headline caught my eye:  Boy Tarzan's ma takes swing at dad in divorce.

 "The teenage star of Broadway's "Tarzan" was hurt so much by a bitter feud between his parents it sent him into intense therapy sessions."

Unfortunately, this is not an isolated case. It is the children who often bear the scares of a bitter divorce battle. In the best of situations, the parties agree that they cannot stay married, but work together to foster the best interests of the children.   However, in the worst of situations, the parties fight over everything, including the children. The children of a marriage merely become pawns in their parents’ battle. 

Minor visitation schedule modifications become epic battles; fights erupt over a drop-off and pick-up time for visitation. In the most egregious cases, one parent openly bad mouths the other parent to the children.  How could a child not become alienated or depressed? 

Every judge admonishes the litigants that the children have two parents and that the children have the right to enjoy the love and attention of both parents. It is sincerely hoped that parents put their differences aside and do what is necessary to support and foster relationships with their ex’s.   The alternative is, I am afraid, a country of depressed alienated children, who will one day promulgate their ills when they, one day, become parents.

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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 frequency, I am being asked to prepare these agreements where wealth is just a potentiality.  

A prenuptial agreement is a contract made by the prospective spouses before the contemplated marriage. The agreement will commonly provide how property will be divided in the event of divorce or death, but it can cover many other issues in the marriage as well. For instance, pre-nuptial agreements can provide for how property will be acquired during the marriage; how it be will be classified for equitable distribution purposes (marital or separate property) in the event of divorce; how the parties’ estates will be handled if the marriage ends by death, and how (and if) maintenance (alimony) will be paid in the event if the marriage ends in divorce.

In Nicole Kidman’s case, “The papers give Keith just over  $US600,000 a year for every year they're together.”

“There's also a clause that allows Nicole to leave the marriage without giving a cent to Keith - an ex-cocaine addict - if he uses illegal narcotics or drinks excessively.”

In order to ensure that your pre-nuptial agreement will be found to be valid, you and your future spouse should each seek legal representation. One attorney cannot represent the two of you.  An experienced matrimonial attorney will be able guarantee that the agreement will be signed with the necessary formalities.  If your future spouse is also represented you will have some assurance against future claims that the agreement was procured as a result of fraud, undue influence, coercion or duress. In addition, you should be prepared to make full disclosure of your net worth. Lastly, you should not spring the pre-nuptial agreement on your soon to be spouse at the very last minute. Plan on having the agreement signed and in place in advance of the wedding.  

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 I often receive telephone calls from prospective clients and, without fail, the first question out of their mouth is, “How much will a divorce cost?”   I cannot answer that question, at least without probing further.

A divorce is not a commodity. A prospective client is not purchasing a widget, where they can comparison shop by price. Instead, the client is retaining a professional to render a service. Legal services are generally rendered on a time basis.   That is, the client generally pays for legal representation at an agreed upon hourly rate. An attorney’s hourly rate is often a measure of the lawyer’s experience, knowledge and reputation.  

Often, when I explain this, the next question is, “Well, you have been doing this for some time; you must know how long my divorce will take.”   My answer again is, “I don’t know how long your divorce will take.” I am an attorney not a fortune-teller.   I know only what you told me about your case, I completely unaware of your spouse’s view of the case (which may be diametrically opposed to your view). 

 Clearly, the more heated and contested the divorce, the more time will be spent in handling your matter, resulting in a higher fee. If you or your spouse are unreasonable in your expectations or inflexible in your demands, you will spend more time and money on the divorce. Oft times, parties will be so litigious, that the entire marital estate could be exhausted in legal fees.

 On the flip side, if there are no issues, or if the issues can easily be resolved, the cost of the divorce can be minimal.  

That said, should you really pick your attorney based solely upon price? After all, do you pick your doctor on price or because you are confident in his/her abilities? In future postings, I will discuss what you should consider when retaining an attorney.  

I think the only time a legal fee should be a consideration is when it is too low. A low ball legal fee is a reason to run away from that representation.   I am aware that there are many services that advertise they will assist you in obtaining a divorce for a couple of hundred dollars.   Stay away from these services. These practices may be, at best, paralegal services. Odds are you will never speak to an attorney. These “divorce mills” work on volume and are ill-equipped handle substantive legal problems.   

 Over the years, I have represented several clients after they have been “represented by” a divorce mill. Most of the cases were riddled with problems.   These unfortunate clients found out the hard way, there is no such thing as a bargain as the cost to undue the divorce mill’s errors exceeded the perceived savings in retaining these services. 

 On the other hand, I am not advocating going to the opposite extreme, retaining the lawyer with the highest hourly rate. Just go into the relationship with your eyes open.

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When it comes to divorce, New York is, in some respects a dinosaur; New York is the only state in the United States that does not have a true “No Fault” divorce.   That is, in New York in order to obtain a divorce, a party must allege, and if contested, prove, a legal basis for the divorce – a grounds for divorce, i.e.,  adultery, cruel and inhuman treatment or abandonment.     The absence of a true no fault divorce has often resulted in costly legal proceedings and bitter custody fights even in cases where both sides want a divorce

A panel appointed by Chief Judge Judith Kaye and some legislatures are fortunately seeking to remedy the situation.  Panel Asks New York to Join the Era of No-Fault Divorce 

Legislation is now pending which would allow for a no fault divorce in situations where the parties agree that the marriage has irretrievably broken down and is no longer viable. More importantly, as Judge Kaye pointed out: “Divorce takes much too long and costs much too much — too much money, too much agony, too hard on the children," Judge Kaye said in her annual address on the state of the judiciary. She said afterward that no-fault divorces would mean that spouses "don't have to invent charges against each other."

The change in law should be welcome to all. It will, hopefully, streamline the divorce process, save the parties the expense of needless and avoidable litigation, and allow the court to conserve its limited resources.  While I am desirous of modernizing New York’s divorce law, I am not optimistic that it will change anytime soon. As the movement gains some steam, this blog will comment on the various proposals.    

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One federal judge, miffed at lawyers who could not agree on how to handle a dispute, ordered the lawyers to appear on the courthouse steps and resolve their petty squabble by playing rock, paper, scissors.  Judge Makes 'Rock, Paper, Scissors' Ruling.  Perhaps this is a good method of alternative dispute resolution.

Clearly this judge would not have the patience to hear matrimonial disputes where the litigants oft argue like little children over personal property of little or no value.  Combative parties to a divorce will spend thousands of dollars on attorneys’ fees and court costs to fight about some object  of personal property, not because they really want it, but because their spouse expressed some interest in retaining it.  The tug-of-war over assets could easily deplete the marital estate so that in the end, after paying all the costs of litigation, there is nothing left to fight about.   I have often thought that when my clients become so entrenched in this type of battle, I would be doing them a service if I simply took my opposing counsel shopping and merely bought an identical set of dishes so that each spouse could “win.”

I think this Judge was correct in forcing the litigants to recognize their foolishness. Perhaps, rather than enabling some of the petty disputes that are common in a divorce, we should force the parties to recognize their counter-productive and immature behavior. This will certainly help to reduce the over crowded court calendars and reduce the cost of obtaining a divorce.

If dialog and reasonable negotiations fail, we can always resort to rock, paper scissors.

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Memorial Day is the unofficial beginning of summer. But, from a family law attorney’s perspective, summer began a long time ago.

Some time before they purchase the sun screen, parents need  to make arrangements to plan for their children’s school vacation, summer camp and extended vacations away from home. However when the parents divorce and get to spend only a part of the summer with their kids, things can heat up real fast.

In order to facilitate a peaceful  summer, divorced parents will need to cooperate with each other. Unfortunately, as the temperature rises, so does the acrimony as the parents fight over who will be with the children for the month of July and who will be with the children in August.   If the parents cannot cooperate, rather than having fun under the sun with their children, they will spend the summer in a courtroom with their lawyers and a judge.

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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 spousal maintenance. Certainly, Heather Mills became accustomed to living the jet set lifestyle enjoyed by one of the richest men in the world.   She has the right to continue to enjoy that lifestyle.  

How it will play out in the English system, and what Paul will have when he turns “64”, only time will tell.” 

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